9911796707
TMI Blog2018 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... Income tax (Appeals) has erred in sustaining the reopening of assessment u/s 147 of the Income Tax Act, 1961. 3. That the learned Commissioner of Income Tax (Appeals) has erred in sustaining the addition of Rs. 65,86,835/- made on account of short term capital gain on sale of agricultural land holding that the land was not agricultural land within the meaning of section 2(14) of Income Tax Act, 1961. 4. The above grounds of appeal are without prejudice to each other." 2. Brief facts of the case are as under : Assessee filed its return of income declaring income of Rs. 43,364/- on 19/03/07, which was processed under section 143 (1) of the Act. Subsequently from assessment order passed in case of Smt.Chaya Sinha wife of Sh. Praveen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,34,47,500/- vide sale deed 31.10.2005. Assessment has been completed in the case of Smt. Chhaya Sinha by denying exemption u/s 2(14) and short term capital gain has been added back to the total income of Smt. Chhaya Sinha (she has 50% share in the said law). It is further noticed that the assessee has claimed deduction amounting to Rs. 82,83,292/-. The assessee is not entitled to claim exemption as the land sold during the year was capital assets falling within the meaning of section 2(14)(iii)(b) of the I.T.Act, as the land in question is situated in the adjoining area of Tehsil Palwal, and capital gains tax is liable on the capital gain arising out of this transaction. Keeping in view of the facts dated above, I have reason to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by assessee challenging validity of reopening of assessment under section 147 of the Act. 11. Ld.AR submitted that there is no material that has come to the possession of Ld.AO and reopening is based on returns filed by assessee. He submitted that assessee had filed its original return under section 139 (1) of the Act on 19/03/07, which is the basis for reopening of assessment in present case. Ld.AR further submitted that reasons recorded for reopening does not speak of any independent material which had come to the notice of Ld.AO, and therefore reassessment notice is without any foundation which cannot be considered to be valid. He submitted that reasons recorded for reopening is based upon assessment proceedings in case of Smt.Chaya S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed her return of income on 19/03/07, wherein she had disclosed profit from sale of agricultural land amounting to Rs. 62,18,410/-. The same is evident from computation of income placed at page 3-4 of paper book. The assessment was reopened, and as per reasons recorded, a similar claim in case of co-owner was denied by assessing officer and further that the land in question, is situated in adjoining area of Thasil, Palwal, and capital gain tax is payable on capital gains arising out of this transaction. However it is further observed that Inspectors report relied upon by Ld.AO show land is about 11 km from Thasil Palwal. Ld.AR while arguing his case, placed reliance upon decision of this Tribunal dated 11/03/16, passed in case of co-owner, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing exemption under section 2 (14) and 50% of short term capital gain has been added back to the total income of Smt.Chaya Sinha. And * the exemption claimed by assessee is to be denied as it was a capital asset falling within the meaning of section 2 (14) (iii) (b) of the I T act, as the land in question is situated in the adjoining area of Thasil Palwal and capital gain tax is liable on the capital gain arising out of this transaction. 15. In our view the above 2 reasons cannot be the basis for reopening assessment in case of assessee before us. Merely because addition has been made in hands of co-owner, no presumption could be drawn that income has escaped assessment in the hands of assessee, without there being independent 'reasons t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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