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TMI Blog2017 (10) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed return of income on 31.10.2005 declaring nil income. The return was taken in scrutiny by the Assessing Officer. He passed the order of assessment under section 143(3) of the Act on 31.12.2007 accepting the declaration of nil income as also the assessee's claim for long term capital loss of Rs. 15.80 lacs on sale of land. 3. The Assessing Officer issued a notice for reopening such assessment under section 148 of the Act on 19.8.2010 in which his dispute was with respect to computation of cost of acquisition of land for the purpose of computing long term capital gain or loss on sale of such land. The assessee had shown the cost of acquisition as on 1.4.1981 at Rs. 135.84 per sq. mtr. as against the valuation of Rs. 80 per sq. m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclose truly and fully all material facts. According to him, the issue was also examined during the original assessment proceedings. On both counts, therefore, Commissioner(Appeals) declared the reassessment invalid. 7. While doing so, he referred to the assessee's further statement before him suggesting that the correct cost of acquisition of land would be Rs. 108.27 per sq mtr. He referred to the materials produced by the assessee in this respect and gave the following directions : "5.1 Thus, as admitted by the AR also, the correct cost of acquisition of saleable lans should have been Rs. 108.27 per sq.mtr and the long term capital gain in the present case should have been Rs. 21,51,968/in place of long term loss of Rs. 14,90,955/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 sq. mt. during the year to the different parties. The assessee has sold 7039 sq. ft of land in earlier years. The rest of land admeasuring 15506 sq mt. belongs to Road and Common areas. In order to worked out the Capital gain on sale of such plotted land the assessee got valuation report of land determining the value of land @ 80 per sq mt as on 01.04.1981 and after indexation of the value of land as on. 01.04. l981,the assessee had arrived the cost of acquisition. While working the cost of acquisition of land the assessee has taken rate of land @ 135.84 per sq mt on the basis of entire land area and did not exclude the part of land admeasuring 15506 sq mt which was not saleable on account of being road and common area. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) could at best save the limitation in terms of section 150 of the Act but would not form the basis for reopening the assessment which would depend solely on the jurisdictional requirements being satisfied. 11. On the other hand, learned counsel Shri Parikh for the department opposed the petition contending that fresh material was brought on record during the appellate proceedings. CIT(Appeals) therefore, made suitable observations and gave directions. These directions were not challenged by the assessee. In collateral proceedings, he cannot question them. 12. The central issue involved in the return filed and in the subsequent assessment concerns the question of long term capital gain of the assessee upon sale of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te forum. The petitioner having accepted and acquiesced in the order cannot question the wisdom or authority of CIT(Appeals) to issue such directions. Equally importantly, the stand of CIT(Appeals) in on one hand annulling the reassessment on the grounds of previously scrutinized claim and no failure on part of the assessee to disclose truly and fully material facts and at the same time directing the reopening of the assessment, was not in any manner incongruent. His observations or conclusions for invalidating the assessment were based on materials which were before the Assessing Officer at the time of issuing the notice for reopening. His directions were based on the materials which came before him during the appellate proceedings. By ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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