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TMI Blog2017 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... n mentioned in the sale deed of the property, it is a part of sale consideration, thus, the income has escaped assessment and therefore the Assessing Officer issued notice under section 148 of the Act and reopened the assessment passed under section 143(3) of the Act. The assessee during the appeal proceedings has objected the reopening on the ground that the assessee has disclosed all the material facts relating to the capital gain like copy of the sale deed, copy of the joint venture agreement etc., and discussed with the said Assessing Officer. The inference drawn subsequently after the completion of the assessment is objected to as there is no further or new information or particulars are available on the file except those given at the time of assessment. Aggrieved with the above reasons and by the assessment order, the assessee carried the appeal before the learned Commissioner of Income-tax (Appeals). 3.1 Before the learned Commissioner of Income-tax (Appeals), the assessee has placed reliance on the judgment of the apex court in the case of CIT v. Kelvinator of India Ltd. reported at [2010] 320 ITR 561 (SC). The conclusion drawn by the hon'ble Supreme Court cited supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication of the matter accordingly the action of the Assessing Officer is upheld. By the Commissioner of Income-tax (Appeals). Against this, the assessee is in appeal before us. 4. Before us, the learned authorised representative submitted the following points in support of his arguments. (a) The notice under section 148 had been issued beyond four years from the end of the assessment year. We have already extracted the reasons recorded by the Assessing Officer for issue of notice under section148 of the Act. In sum and substance, the reason is that the guidelines value of the land sold is more than the consideration and hence capital gains needs to be enhanced. (b) There is no averment that the assessee failed to furnish any material/document necessary for completion of assessment. The proviso to section 147, reads as under : "Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of immovable property owned, acquired and sold during the year. The assessee has furnished all details to the Assessing Officer at the time of original assessment and there was no failure on the part of the assessee to disclose all material facts necessary for the purpose of assessment. According to the learned authorised representative, the reopening after four years of end of the relevant assessment year vide notice under section 148 of the Act dated July 1, 2011, it is only a change of opinion. He submitted that the Assessing Officer going through the same documents, which were already on record, wanted to reopen the assessment, which is nothing but review of the earlier assessment order, which is not possible under section 147 of the Act. In this case, the assessment was reopened after recording the following reasons vide notice issued under section 148 dated July 1, 2011 : "While going through the scrutiny record, it is seen that the assessee has sold four (4) flats during the year and there are total difference of Rs. 12,80,700 in sale consideration as per guideline value admitted in document. Therefore, as per section 50C of the Income- tax Act the difference should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148(2) to record reasons in writing. The reassessment proceedings under section 147 are further subject to sections 148, 149, 150, 151, 152 and 153. But in the present case, we are required to decide the limited issue regarding the validity of proceedings undertaken after four years of the assessment year in question. The Assessing Officer is required to see if the conditions laid down in Explanation 2(c) because in this case the assessment was completed under section 143(3) are satisfied or not. In case, (i) income chargeable to tax has been under assessed ; or (ii) such income has been assessed at too low a rate ; or (iii) such income has been made the subject of excess relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed, the Assessing Officer would have valid cognizance under section 147 of the Act. The reasons recorded by the Assessing Officer clearly speak for the underassessment of tax hence, the conditions laid above stand fulfilled in so far as reassessment proceedings are concerned. In so far as the reasons recorded, extracted in the above portion of this order, we are satisfied that the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 3. It is true that "every disclosure" is not and cannot be treated to be a true and full disclosure. A disclosure can be even false or true. It may be a full disclosure or it may not be a full one. A part disclosure many a times may be misleading one. What is required under the law is a full and true disclosure of all material facts necessary for making assessment for that year. This law was laid down by the hon'ble Supreme Court in the case of Sri Krishna Pvt. Ltd. v. ITO [1996] 221 ITR 538 (SC). The words "omission or failure to disclose fully and truly all material facts necessary for assessment for that year postulates a failure of the assessee to disclose fully and truly all "material facts necessary" for his assessment. What facts are "material" and "necessary" for assessment will differ from case to case. The material should not only be full but also be true. If some material found in the evidence produced before the Assessing Officer which the Assessing Officer could have uncovered but did not, then it is the duty of the assessee to bring it to the notice of the assessing authority. This omission or failure may be either deliberate, or even inadvertent, that is immat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer noticed that the assessee has sold 4 flats for sale consideration of Rs. 9,99,000 whereas the guideline value for the above four flats was amounting to Rs. 22,79,700. During the reassessment proceedings, the assessee was show caused as to why the guideline value as per section 50C should not be taken for the sale consideration of the four flats. In response, the assessee replied that there was undue delay in selling the flats due to adverse economic factors. The assessee further stated that it is a low lying area and there is a factory adjacent to it due to which it was registered at a lower value. The contention of the assessee was not acceptable. Further the assessee requested to refer the same to the Valuation Officer for the exact value of the property. The Assessing Officer rejected the plea of the assessee to refer to the Valuation Officer and therefore the sale consideration was taken on account of sale of undivided share of land at Rs. 22,79,700 as per guideline value under section 50C of the Act. The difference on this account was Rs. 12,80,700 and the same was brought to tax. Aggrieved, the assessee carried the appeal before the learned Commissioner of Income-tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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