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2016 (7) TMI 518 - GUJARAT HIGH COURT

2016 (7) TMI 518 - GUJARAT HIGH COURT - [2016] 387 ITR 99 - Reopening of assessment - exemption under section 54F not allowable - petitioner had pointed out that he had purchased two plots of land under a deed dated 20.6.2008 - Held that:- Quite apart from the assessee's placing full material at the disposal of the Assessing Officer, the claim was also examined by the Assessing Officer during assessment proceedings. Having accepted the claim in law, but having made partial disallowance consideri .....

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e Mr. Justice Akil Kureshi ) The petitioner has challenged a notice dated 18.6.2014 issued by respondent Assessing Officer re-opening the petitioner's assessment for the year 2009-2010. 2. The petitioner is an individual. For the assessment year 2009-2010, the petitioner had filed return of income on 27.3.210 disclosing total income of ₹ 43.86 lacs (rounded off). During the period relevant to the said assessment year, the petitioner had sold two immovable properties, namely, plot at Ra .....

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n of ₹ 1.08 and ₹ 1.47 crores respectively. 3. The return of the assessee was taken in scrutiny. The Assessing Officer framed scrutiny assessment under section 143(3) of the Act on 13.12.2011. He made partial disallowance on the assessee's claim for exemption under section 54F of the Act. To re-open this assessment, the Assessing Officer issued impugned notice which was beyond period of four years from the end of relevant assessment year. He supplied the reasons recorded for issu .....

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f said assets. To claim exemption under section 54F of the Act, the assessee has made investment in two residential plots at plot no.51 and 52, situated within Basant Bahar complex forming part of nonagricultural residential use bearing Block no.565 and 614of moje Bopal aof Dascroi Taluka, R. 1,08,60,000/- and ₹ 1,47,90,000/- respectively. The assessee has made investment of capital gain so arised on transfer of long term capital assets in two residential plots. However, as per the provisi .....

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vities of such house within three years from the date of transfer of original asset. But the assessee has not filed any proof of construction activities being carried over on the said plots of land during the assessment proceedings. Even though no such detail/information available on record, that the assessee has construction the new house on the said plots. In the case, the assessee has not fulfilled the conditions as laid down in the section 54F of the Act, to claim exemption of the said capit .....

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essment proceedings under section 143(3) of the Act was completed on 13.12.2011 i.e. period near about three years from the date of transfer of original assets. As the assessee has claimed a huge exemption i.e. ₹ 2,75,84,239/- under section 54F of the Act, this issue should have been verified thoroughly and assessee should have filed sufficient evidences like completion of construction activities completed within the period as provided in section 54F of the Act. As the assessee has not ful .....

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on the part of the assessee to disclose truly and fully all material facts. Even reasons recorded by the Assessing Officer suggest that his conclusions are based on materials on record. Notices for re-opening beyond period of four years therefore, was invalid. The counsel further submitted that even otherwise, the Assessing Officer had examined the claim in detail in the original assessment. Any addition, now on the same ground would be based on mere change of opinion. 6. Counsel for revenue op .....

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sted in purchase of two nonagricultural use open plots. In this case, we are not concerned with the validity of the assessee's claim. We are concerned with the notice for re-opening on the basis of reasons recorded by the Assessing Officer. In this respect, the reasons start with narration on verification of the case record...... . Thus, the conclusions of the Assessing Officer are based on verification of the case record. In other words, there was no material outside of the assessment proce .....

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e have also perused the assessment proceedings, in context of the petitioner's contention that this question was examined by the Assessing Officer during original assessment. Our belief that the assessee had disclosed full facts is reinforced while examining such contention. In this context, the assessment record would show that during such assessment, the Assessing Officer had raised demand for supply of various details under a letter dated 27.09.2011, one of them being residential proof in .....

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Op. H.S.Ltd., Vibhag I, Basant Bahar, Near Sterling Club, Bopal, Ahmedabad of ₹ 1,08,60,000/- and ₹ 1,47,90,000/-. 5. Regarding proof of claim of exemption under section 54F, attention is invited to the purchase of land for residence at (B) above and Computation of Income inclusive of unutilised Capital Gain R. 6,97,904/-. 10. Thus, the petitioner had pointed out that he had purchased two plots of land under a deed dated 20.6.2008. We are informed that even these purchase deeds were .....

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his regard, the assessee was called upon to furnish the copy of the purchase deed alongwith the details of cost of the property. On perusal of the puyrchase deed/Deed of Conveyance, it is seen that the purchase price/consideration of the property is ₹ 9,75,000/-. On further perusal of the said Conveyance deed, it is mentioned at Pg.No.15 that All the expenses such as Stamp Duty, Registration Fees, Transfer fees etc. as also Solicitors/Advocates Fees and all other miscellaneous expenses in .....

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