TMI Blog2020 (2) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 147 of the Income Tax Act, 1961 pursuant to issue notice under Section 148 of the Income Tax Act, 1961, the officer concerned has to not only keep in mind the express language of the proviso to Section 147 of the Income Tax Act, 1961 but also well settled principles of law. The respondent cannot have a re-look into the issue arising out of the claim of the petitioner for Long-Term Capital Gains which was allowed in the assessment order passed on 29.10.2011 as there was true and full disclosure of all material required for assessment by the petitioner for claiming deduction; Therefore, the proposal to re-determine the taxable income and the tax payable by the petitioner for the reasons stated in the impugned communication is unsustainable.; At the same time, while passing final order under Section 147 of the Income Tax Act, 1961, the respondent can examine any other aspect for escaped assessment of tax in the light of Explanation 3 to Section 147 of the Income Tax Act, 1961. While passing such order, the respondent shall not disturb the deduction allowed under Section 54 of the Income Tax Act, 1961 in the assessment order dated 29.10.2011. Since the disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of four years and six years would have expired on 31.03.2014 and 31.03.2016 respectively for the purpose of Section 147 of the Income Tax Act, 1961. 8. The impugned notice was issued on 30.03.2016 under Section 148 of the Income Tax Act, 1961. Under these circumstances, the petitioner called upon the respondent to furnish reasons for reopening the assessment as per the decision of the Hon ble Supreme Court in G.K.N.Driveshafts (India) Ltd. Vs. Income Tax Officer and Others , (2003) 1 SCC 72. By a communication dated 08.08.2016 bearing reference No.ITO/NCW15(2)/ADLPV366R/16-17, the reasons were furnished to the petitioner. 9. It is stated that the petitioner has wrongly claimed Long- Term Capital Gain of ₹ 41,39,650/- on transfer of house property for sale consideration of ₹ 1.2 crores and had claimed an exemption under Section 54 by depositing a sum of ₹ 50 lakhs under the Capital Gain Scheme the Corporation Bank on 13.07.2009 and that from the recital of the Agreement of Sale dated 18.03.2009, it was noticed that the petitioner had acquired the house property only on 30.01.2008 and transferred it within fourteen months of its purchase and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent decision of the learned Single Judge in the M/s.Asianet Star Communication Private Limited Vs. Asst Commissioner of Income Tax in W.P.Nos.25328, 25331 and 25336 of 2018 pronounced on 16.04.2019. 15. Opposing this Writ Petition, the learned Government Advocate (T) for the respondent submits that this writ petition was liable to be dismissed as the respondent is indeed empowered to reopen the assessment as long as the notice issued under Section 148 meet the criteria under Sections 149 to 153 of the Income Tax Act, 1961. It is submitted that the views expressed in the communication dated 10.11.2016 is only a prima facie view and therefore the petitioner should be directed to participate in the adjudicatory mechanism prescribed the Act. 16. The learned Government Advocate (T) for the respondent has relied on the decision of a learned Single Judge in Seshasayee Paper Boards Ltd. Vs. Union of India in W.P.Nos.12603 12604 of 2002 and W.P.No.33239 of 2002 dated 25.01.2019, wherein, in a somewhat identical case, the writ petitions were dismissed. 17. I have considered the arguments advanced on behalf of the petitioner and the learned Government Advocate (T) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai was a short-term capital gains in the light of the decision of the Hon ble Supreme Court in the Kelvinator of India s case referred to supra. 22. The respondent will have to therefore pass an order dropping the proposal contained in the notice dated 13.03.2016 on this issue as it cannot be said that income chargeable to tax had escaped assessment by reason of the failure on the part of the petitioner to either make a return under Section 139 or in response to a notice issued under Section 142(1) or Section 148 to disclose fully and truly all material facts necessary for his assessment. 23. At the same time, while dropping the proposal contained in the notice invoking Section 148 of the Income Tax Act, 1961, the rights of the respondent to exercise the power in terms of Explanation 3 to Section 147 of the Income Tax Act, 1961 cannot be curtailed. 24. The issue of notice under Section 148 for the purpose of passing an order of re-assessment Section 147 has to merely satisfy the requirement of Section 149 to 151 of the Income Tax Act, 1961. 25. At the same time, while passing orders under Section 147 of the Income Tax Act, 1961, an Assessing Officer is required to k ..... X X X X Extracts X X X X X X X X Extracts X X X X
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