TMI Blog2017 (5) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was applied/estimated in the case of co-owner is required to be considered and applied by the Assessing Officer, even in the case of the assessee – being the coowner of the very land in question, since there cannot be two different estimations of the fair market value as on 1st April 1981 with respect to the same land but in the case of different assessees/co-owners. Under the circumstances, now when the order of assessment is already passed, in the aforesaid peculiar facts of the case, we refuse to entertain the present petition challenging the order of assessment under Section 147 and relegate the petitioner to prefer the appeal before the CIT [A] against the order of assessment under Section 147 and keeping all the contentions/defence which would be available to the parties; more particularly available to the petitioner-assessee. As observed as such there cannot be two estimations of the fair market value as on 1st April 1981 in respect of the very land in question, but in case of different assessee/co-owner. Thus without expressing anything further on merits in favour of either parties, we relegate the petitioner to avail alternative statutory remedy available by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was also seen that the said land was an ancestral land and fair market value of land as on 1st April 1981 was estimated at ₹ 77,44,375/- by registered valuer for calculation of long term capital gain. Accordingly, cost of acquisition for share of assessee in the land arrive at ₹ 25,22,644/- and after indexation long term capital gain of ₹ 8,22,645/- was shown by the assessee at the time of filing of the return. On perusal of valuation report, it was noticed that the value estimated by registered valuer as on 1st April 1981 was on higher side and in variance with its fair market value. The fair market value of land as on 1st April 1981 as per valuation officer, Surat estimated at ₹ 10,19,250/- as on 1st April 1981. Accordingly, 1/3rd share of LTCG works out to ₹ 1,79,84,633/-. Difference of ₹ 1,71,62,388/- [Rs. 1,79,84,633/- - ₹ 8,22,245/- shown as per ROI] has been escaped from the assessment. In view of the above mentioned facts, I have reason to believe that the income of ₹ 1,71,62,388/- has been escaped from the assessment for the reasons of non compliance of provisions of I.T Act on the part of the assessee for the A.Y 2012-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for A.Y 2012-2013, it appears that the respondent had issued a notice to make addition only on the ground that the fair market value as on 1st April 1981 of the land sold by the petitioner is valued by the DVO on the lower side compared to the value determined by the registered Valuer and this difference in the fair market value has increased the indexed cost of the asset of the petitioner leading to lesser capital gain, and hence, such indexed cost of the asset needs to be reduced resulting into higher capital gain which needs to be added to the income of the assessee. It is submitted that the aforesaid reason recorded to reopen the assessment is ex facie bad, illegal and erroneous. It is submitted that no reopening of assessment is permissible/possible based solely on the report of Valuation Officer. 5.2 It is further submitted that solely on the basis of and/or solely relying upon the report of DVO, the reopening of the assessment is not permissible in as much as, the report of DVO can be said to be an estimate and it cannot be used to draw an inference that the income has escaped the assessment. It is submitted that as such there is no independent subjective sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , without giving sufficient opportunity to the petitioner assessee to challenge the re-opening proceedings, immediately after the objections raised by the assessee were over-ruled by the Assessing Officer. 5.5 It is submitted by Shri Soparkar, learned counsel for the petitioner that Hon ble Supreme Court in the case of GKN Driveshafts [India] Limited v. Incometax Officer Ors., reported in [2003] 259 ITR 19 had specifically directed that when the notice under Section 148 of the Act is issued and the noticee files a return and seeks reasons for issuance of the notice, the Assessing Officer is bound to furnish the reasons within a reasonable time. It is submitted that thereafter, the Division Bench of this Court in the case of Commissioner of Income-tax v. Gauranginiben S. Shodhan, reported in [2014] 367 ITR 238 [Gujarat] has reiterated the view by holding that the Assessing Officer shall supply the reasons recorded by him within thirty days of the filing of the objection by the assessee without waiting for the assessee to demand such reasons. It is submitted that in the present case, the petitioner requested for furnishing the reasons recorded by the Assessing Officer as early a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the basis of which, the Assessing Officer is justified in reopening the assessment, which was as such under Section 143 [1] of the Act. 6.3 Shri Sudhir Mehta, learned advocate for the Revenue has heavily relied upon a decision of Allahabad High Court in the case of Sunder Carpet Industries v. Income-tax Officer, reported in [2010] 324 ITR 417 [Allahabad] in support of his submissions that if the true facts are not recorded in the books of account and the fair market value has not been disclosed, reference can be made to the DVO. It is submitted that in the said decision, it is held that if the valuation report discloses higher investments in the construction which had not been disclosed in the books of account, it can be said that there was escapement of income. It is submitted that in the aforesaid decision, it is also held that the Departmental Valuer s report constituted material for entertaining a belief of escaped income in the years under consideration, and therefore, re-assessments were held to be justified. 6.4 Now so far as contention on behalf of the assessee that the Assessing Officer had passed the assessment order under Section 147 of the Act in haste is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 148 of the Act has been rightly issued. It is submitted that on identical issue in the case of Shri Ashwinkumar Chimanlal Raval for A.Y 2012-2013, he has also onethird holding in the same property on which assessment was finalized by the ITO, Ward 2 [2](1), Surat which was challenged before the CIT [A], Surat and the similar addition has been confirmed by the learned CIT [A], Surat vide Order dated 29th August 2016. It is submitted that therefore in the facts and circumstances of the case, the Assessing Officer is justified in reopening the assessment for A.Y 2012-2013 on considering DVO s report. It is submitted that therefore, the decisions relied upon by the learned counsel for the petitioner-assessee shall not be applicable to the facts of the case on hand. Making the above submissions, it is requested to dismissed the present petition. 7. In rejoinder, Shri S.N Soparkar, learned counsel for the petitioner-assessee has vehemently submitted that the reference to the assessment order of Shri Ashwin Chimanlal Raval is ill founded because in that case, the concerned assessee had not given any reply to the show cause notice for making addition on the ground of difference in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Shri Ashwinkumar Chimanlal Raval, the Assessing Officer had determined/estimated, and/or considered the fair market value as on 1st April 1981 at ₹ 10,19,250/- and consequently, the assessment order has been passed in the case of co-owner of the very land in question estimating the fair market value at ₹ 10,19,250/- as on 1st April 1981 and accordingly, the long term capital gain has been worked out. It is reported that in the case of co-owner of the very land in question ie., Shri Ashwinkumar Chimanlal Raval, the learned CIT [A] dismissed the appeal preferred by the said assessee, and therefore, the fair market value which was applied/estimated in the case of co-owner is required to be considered and applied by the Assessing Officer, even in the case of the assessee being the coowner of the very land in question, since there cannot be two different estimations of the fair market value as on 1st April 1981 with respect to the same land but in the case of different assessees/co-owners. Under the circumstances, now when the order of assessment is already passed, in the aforesaid peculiar facts of the case, we refuse to entertain the present petition challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X
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