TMI Blog2019 (2) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of execution of the sale-deed the Petitioner received any further sale consideration. Under these circumstances, the impugned notice is set aside. - Decided in favour of assessee. - WRIT PETITION NO. 3649 OF 2018 - - - Dated:- 7-2-2019 - AKIL KURESHI B.P.COLABAWALLA, JJ. Mr. Madhuar Agrawal a/w Mr. Upendra Lokegaonkar I/b Mint Confreres for the Petitioner Mr. N.C. Mohanty for Respondent Nos.1 and 2. P.C. : The Petitioner has challenged a notice of reopening of the assessment issued by Respondent No.1 Assessing Officer ( A.O. for short) on 30th October, 2018. 2. Brief facts are as under; The Petitioner is an agriculturist. For the Assessment Year ( A.Y. for short) 2014-15, the Petitioner had not filed any return of income claiming that she had no taxable income. The A.O. issued a notice under Section 148 of the Income Tax Act, 1961 ( IT Act for short) seeking to assess the Petitioner's income for the said A.Y. In order to do so, he had recorded the following reasons - The assessee has not filed the return of Income for A.Y. 2014-15. 2. In this case, information has been received from the Addl. Director of Income Tax ( I CI), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no transfer of the property. The A.O., however, passed the order of assessment holding that looking to the terms of the agreement, the transfer of the land was completed and that the assessee was liable to pay capital gain tax during the said year. The counsel submitted that the Petitioner had not filed appeal against such an order of the assessment. The A.O. now cannot go back on this position and claim that the transfer of the land was complete only upon execution of the sale-deed. He, therefore, submitted that the reasons recorded by the A.O. lack validity. 5. On the other hand, learned counsel for the department opposed the petition contending that the A.O. has recorded the proper reasons. The Petitioner had not filed the return of income for the said A.Y. 2014-15. He relied on the decision of the Supreme Court in the case of Assistant CIT Vs Rajesh Jhaveri Stock Brokers (P) Ltd. (291 ITR 500 ) to contend that in such a situation the A.O. has wide latitude to reopen the assessment. At this stage, the Court would not be concerned with the sufficiency of the reasons for reopening the assessment. 6. We have perused the documents and record minutely. On 31/08/2007 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Purchaser and its nominees, authorising them to do the various acts deeds matters and things in respect of the said Property as the Vendor himself could do as the co-owner of the said Property and another Power of Attorney in favour of Purchaser and its nominee or nominees authorising them inter alia to withdraw and settle the pending cases. 4. The stamp duty and registration charges payable on this agreement and/or the said consent terms and/or the said conveyance shall be borne and paid by the Purchaser alone and the Vendor shall not be liable or responsible for the same. 5. Neither party shall be entitled to terminate this agreement except on account of an express breach of the terms and conditions of this agreement. Each of the parties hereto shall be entitled to seek specific performance of the agreement against the other. 6.. The Vendor has made it clear to the Purchaser that the Vendor is not in possession of the said Property or any part thereof and it will be upto the Purchaser to negotiate with those found in possession thereof and obtain possession of the said Property from them. In the event of any dispute arising between the parties hereto with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does hereby confirm, admit and acknowledge, and from the same does hereby release and discharge the Purchaser forever. The Vendor confirm that she has received the entire purchase price payable by the Purchaser and consequently the agreement herein shall not be revoked or cancelled by her under any circumstances. 3.2 The Purchaser confirms that it has agreed to purchase and acquire the Vendor's share right title and interest in the said property subject to the aforesaid litigations and claims set out in clauses 2.1 and 2.2 above, at the Purchaser's owns costs risk and consequences. The Purchaser alone shall be responsible and liable for settlement of all the aforesaid disputes and the acquisition of the shares of the other co-owners and the vendor shall not be liable or responsible for resolving or settling the same. The Vendor has provided the Purchaser inspection of photocopies of all documents executed by her and pleadings of all proceedings to which she is a party, and the Purchaser has agreed to purchase the said Property on as is where is basis with all defects and pending proceedings, and the Purchaser shall not hold the Vendor liable or responsible in that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of such valuation instead of sale consideration of ₹ 3.80 Crores, originally received by the Petitioner. 9. The Petitioner had brought to the notice of the A.O. of the previous facts concerning the assessment for the A.Y 2008-09 pointing out inter alia that the A.O. had held that the Petitioner's rights in the immovable property stood transferred upon execution of the agreement to sell. The A.O. now cannot take a contrary stand. This objection was rejected by the A.O. in the order, disposing of the objections by making following observations - 6. In this context, please note that while completing your original assessment u/s. 143(3) dated 02.12.2010, the A.O. held that you were in receipt of entire sale consideration as per agreement dated 31.08.2007 and therefore, the Long Term Capital Gains earned by you as a result of transfer of immovable was taxable in your hands. It may be stated that contrary to your submission towards objecting to re-opening, you had during the course of original assessment proceedings contested that though the assessee received entire sale consideration, no possession of property was given based on adverse possession and lit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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