TMI Blog2017 (1) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... hange of opinion by the subsequent Assessing Officer and also on the ground that there was no failure on the part of the assessee in not disclosing true and correct facts and therefore, condition precedent to assume the jurisdiction under Section 147 of the Act are not satisfied, impugned reassessment cannot be sustained. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 15867 of 2016 - - - Dated:- 18-1-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR SN DIVATIA, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitionerassessee has pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act and has sought to reopen the assessment for AY 200910 alleging inter alia that income chargeable to tax has escaped assessment within the meaning of Section 147 of the Income Tax Act. At the request of assessee, the Assessing Officer served the reasons recorded to reopen the assessment for AY 200910 which reads as under: In this case, return of income declaring total income of ₹ 3,47,29,398/was filed on 17.12.2009. The return of income processed u/s 143(1) of the Act. Subsequently, the case was selected for security through CASS and order u/s 143(3) was passed on 29.08.2011 accepting the returned income. Subsequently, the case was reopened u/s 148 and order u/s 143(3) r.w.s 147 was passed on 26.03.2015 determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on raised by the assessee. Hence, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 3.0. Shri Divatia, learned advocate for the petitioner assessee has vehemently submitted that impugned notice under Section 148 of the Act to reopen the assessment for AY 200910 is absolutely illegal and bad in law and contrary to the provision of Section 147 of the Act. 3.1. It is submitted that as such the sale deeds with respect to land sold in the relevant year under consideration were already before the Assessing Officer. It is submitted that not only that but subsequently AO reopened the assessment for the very AY 200910 for the reasons that with respect to the sale of land bearing su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act was not allowable, it cannot be a ground to reopen the assessment beyond four years. Under the circumstances, it is requested to allow the present Special Civil Application. 4.0. Present petition is opposed by Ms. Mauna Bhatt, learned advocate for the revenue. It is submitted that on verification of the case record it was found that during the year under consideration the assessee claimed exemption under Section 54 B of the Act on sale of land of Sarkhej Survey No. 335 and 344 treating it as an agriculture land, however it was found that the lands were sold for non agriculture purpose and therefore, the assessee was not entitled to exemption under Section 54 B of the Act and therefore, no error has been committed by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in not disclosing the true and correct facts. In fact, the issue with respect to exemption under Section 54 B of the Act was gone into by the Assessing Officer while framing assessment under Section 143(3) of the Act and same was not disturbed in reassessment proceedings. That thereafter, again Assessing Officer is issued the impugned notice on the very ground i.e. on the ground that the assessee was not entitled to exemption under Section 54 B of the Act. Under the circumstances, on the ground that the subsequent reassessment proceedings have been initiated on change of opinion by the subsequent Assessing Officer and also on the ground that there was no failure on the part of the assessee in not disclosing true and correct facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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