TMI Blog2018 (5) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no question of showing any capital gain in the return of income. This basis of reopening of the assessment is also invalid, which leads to the quashing of the assessment order. Moreover, the reasons recorded, as mentioned elsewhere, the AO has taken the cost of acquisition at ₹ 1 lakh as on 1.1.1980. We fail to understand under which provisions of the Act the AO has estimated the cost of acquisition of the land as on 1.1.1980. - Decided in favour of assessee. - SA No. 436/DEL/2017 And ITA No. 3375/DEL/2017 - - - Dated:- 11-5-2018 - SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For The Assessee : Shri Rakesh Gupta, Adv Shri Somil Agarwal, Adv For The Revenue : Shri Atiq Ahmed, Sr. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income. Subsequently, the assessee submitted that the original return filed on 18.09.2012 may be treated as return filed in compliance to notice u/s 148 of the Act. The AO accordingly issued notice u/s 143(2) of the Act and after discussion with the assessee, assessment was completed at ₹ 8.28 crores after making addition on account of capital gain on the impugned sale of land at Village Kadarpur, Teh. Sohna, which was the basis for reopening the assessment. 5. The assessee agitated the matter before the CIT(A) claiming that no valid assessment has been framed by the AO because the reasons recorded by the AO were unsigned and there was no material to form a belief that income has escaped assessment. The plea of the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole receipt is capital gain. Therefore, I have reason to believe and satisfied that the income to the extent of ₹ 8,43,00,000/- has escaped assessment within the meaning of section 147 of I.T. Act, 1961 due to failure on the part of assessee to truly and fully disclose the particulars of his income. Therefore, to bring it to tax, proceeding under section 147 are being initiated. Accordingly, notice under section 148 of income tax Act is being issued. Dated: [Sanjay Kumar] Income tax Officer Ward 2(2), Gurgaon 7. It can be seen from the above that this document is not signed by the AO. The Hon'ble Punjab and Haryana High Court in the case of Atlas Cycle Industries Ltd Vs. CIT reported at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n signed by the ITO and the omission to do so invalidated the notice. . 10. The judgment of the Hon'ble Hgh Court of Calcutta in the case of B.K. Gooyee [supra] was relied upon and the Hon'ble Madhya Pradesh High Court further held that: The provisions of section 292B of the Act intended to ensure that an inconsequential technicality does not defeat justice. But, the signing of a notice under Section 271(1)(a) of the Act is not merely an inconsequential technicality. It is a requirement of the provisions of Order 5, Rule 1(3) of the CPC, which are applicable by virtue of Section 282 of the Act. Under the circumstances, the provisions of Section 292B of the Act would not be attracted in the instant case and the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me has escaped assessment is factually incorrect. 15. Since the impugned land was not an asset within the meaning of section 2(14) of the Act, there was no question of showing any capital gain in the return of income. This basis of reopening of the assessment is also invalid, which leads to the quashing of the assessment order. Moreover, the reasons recorded, as mentioned elsewhere, the AO has taken the cost of acquisition at ₹ 1 lakh as on 1.1.1980. We fail to understand under which provisions of the Act the AO has estimated the cost of acquisition of the land as on 1.1.1980. 16. Considering the totality of the facts in the light of the judicial decisions discussed hereinabove, we are of the considered opinion that notice issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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