TMI Blog2020 (7) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer when he completed the assessment under Section 143(3), dated 05.12.2011. At that juncture, all that the Assessing Officer was concerned about is the claim made by the assessee as expenses for the improvement of the land by levelling, sand filling, road laying etc. The stand taken by the assessee was disbelieved, as no material evidence was produced by the assessee to substantiate such expenses. Based on the very same document, the assessment was reopened by serving notice on 26.03.2014, stating that the assessee should have adopted the value of the land as computed by the District Revenue Officer under the Indian Stamp Act for the purposes of computation of the stamp duty payable on such instrument. As rightly pointed out by the learned counsel for the assessee the words or assessable stood inserted by Finance (No.2) Act, 2009 w.e.f., 01.10.2009 and this provision has been held to be prospective and this issue was considered in the case of R.Sugantha Ravindran [ 2013 (3) TMI 271 - MADRAS HIGH COURT]. Therefore, the revenue cannot refer to Section 50C of the Act to non-suit the assessee. As decided in CALCUTTA DISCOUNT COMPANY LIMITED [ 1960 (11) TMI 8 - SUPREME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eopening of assessment is bas in law when Section 147 of the Income Tax Act clearly says that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment, the Assessing Officer can assess or re-assess the assessment? 3. Heard Mr. T.R. Senthil Kumar, learned Senior Standing Counsel assisted by Ms. K.G. Usha Rani, learned Junior Standing Counsel appearing for the appellant/Revenue and Mr. Naresh Kumar, for Mr. R.N. Amarnath, learned counsel appearing for the respondent/assessee. 4. The issue, which falls for consideration, is whether the reopening of the assessment under Section 147 of the Income Tax Act ('The Act' for brevity) is proper and valid. 5. The assessee is an individual engaged in Real-Estate business, filed his return of income for the assessment year 2009-10, declaring the total income of ₹ 1,31,99,850/- on 01.07.2009. The Assessing Officer completed the assessment under Section 143(3) of the Act by making an addition of ₹ 23,29,000/- being disallowance of improvement cost of land claimed by the assessee and the assessee had shown the sale of the land under the head of short term capital gain . S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of assessment was based on change of opinion, is an incorrect finding and the question of obtaining fresh tangible material is not necessary when the assessment is reopened within four years. In this regard, the learned counsel referred to Section 147 of the Act and also the three provisos and four explanations contained therein. In support of his contentions, the learned counsel referred to the judgment of the High Court of Gujarat in Chunibhai Ranchhodbhai Dalwadi vs. Assistant Commissioner of Income-tax, [2017] 81 Taxmann.com 136 (Gujarat). 9. The learned counsel appearing for the respondent/assessee submitted that the Tribunal has elaborately considered the issue, referred to various decisions and has rightly held that the reopening was bad in law, as it is a clear case of change of opinion. In support of his contention, the learned counsel referred to the decision of this Court in the case of CIT vs. Ashley Services Ltd., (2014) 369 ITR 209 (Madras). Further, it is submitted that Section 50C, which is a special provision for full value of consideration in certain cases, was inserted by the Finance Act, 2002 w.e.f., 01.04.2003. In sub-Section (1) of Section 50, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there to advice the Assessing Officer as to how he should go about in assessing the income of the assessee, as it is the statutory duty of the Assessing Officer. Admittedly, the Sale Deed dated 02.05.2008, is only the document, which is the subject matter of the assessment. This document was very much available with the Assessing Officer when he completed the assessment under Section 143(3), dated 05.12.2011. At that juncture, all that the Assessing Officer was concerned about is the claim made by the assessee as expenses for the improvement of the land by levelling, sand filling, road laying etc. 13.The stand taken by the assessee was disbelieved, as no material evidence was produced by the assessee to substantiate such expenses. Based on the very same document, the assessment was reopened by serving notice on 26.03.2014, stating that the assessee should have adopted the value of the land as computed by the District Revenue Officer under the Indian Stamp Act for the purposes of computation of the stamp duty payable on such instrument. 14. As rightly pointed out by the learned counsel for the assessee the words or assessable stood inserted by Finance (No.2) Act, 2009 w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in R.Sugantha Ravindran (supra). At this juncture, it will be beneficial to refer to the operative operation of the said judgment:- 10. Even otherwise, we are of the firm view that the insertion of words or assessable by amending Section 50C with effect from 01.10.2009 is neither a clarification nor an explanation to the already existing provision and it is only an inclusion of new class of transactions namely the transfers of properties without or before registration. Before introducing the said amendment, only the transfers of properties where the value adopted or assessed by the stamp valuation authority were subjected to Section 50C application. However after introduction of the words or assessable after the words adopted or assessed , such transfers where the value assessable by the stamp valuation authority are also brought into the ambit of Section 50C. Thus such introduction of new set of class of transfer would certainly have the prospective application only and not otherwise. Hence the assessee's transfer admittedly made earlier to such amendment cannot be brought under Section 50C. 18. In the written submissions placed by the learned Senior Standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Consolidated Photo Finvest Ltd., (supra) was a case where the assessment order did not address the aspect on which reopening was made. This would arise when there are several issues to be determined by the Assessing Officer, not as in the case of the assessee on hand, where there is a single issue regarding valuation of the property. 25. The decision in the case of Smt.A.Sridevi (supra) will not apply to the facts of the case on hand, because the assessee in the said case did not produce the relevant documents. In the case of Chunibhai Ranchhodbhai Dalwadi (supra), the assessee did not declare the long term capital gain in the original return of income nor the Assessing Officer considered the same, whereas in the instant case, the only issue was the claim of cost of improvement against capital gains and there was no other issue. Therefore, the said decision will not assist the case of the Revenue. Equally, the decision in Sword Global India(P) Ltd., (supra), would not apply to the facts of the instant case, as there was no allegation against the assessee that he made a false statement. 26. It would be worthwhile to remind ourselves about the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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