TMI Blog2021 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... nd material available and framed the assessment and now, on the same set of facts, again, on the different view by the AO to reopen the proceedings would amount to change of opinion. At the stage of previous assessment proceedings, the assessee had disclosed all the primary facts for the assessment and based upon the materials the AO did not disallow the deduction to the extent of ₹ 1,85,00,000/-. Revenue has failed to show that which necessary facts were not disclosed by the assessee at the stage of previous assessment proceedings. In these circumstances, we are of the view that no new material surfaced during the reassessment proceedings on which the AO could have formed a requisite belief with regard to escape of assessment, especially when the assessee has disclosed all materials fully and truly at the stage of original assessment proceedings. Reference may be made to the case of CIT Vs. Usha International Ltd. [ 2012 (9) TMI 767 - DELHI HIGH COURT] wherein held that the reassessment will be invalid, in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. The reassessment proceedings in the said cases, will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details with regard to claim of long term capital gain. The assessee furnished various details including the copy of registered sale deed and bank transactions with regard to purchase and sale of agriculture land to explain the exempt income of ₹ 1,86,51,572/-. During scrutiny proceedings, AO had taken into account the documentary evidence in the nature of sale deed etc. and allowed the long term capital gain to the extent of ₹ 1,85,00,000/- and made addition for the difference amount of ₹ 1,51,572/- to the total income of the assessee under the head of long term capital gain arising out of sale of immovable property. The assessment order was passed on 18.03.2015. The assessee had paid the tax on the difference amount. 3. Thereafter, the AO reopened the assessment by issuing impugned notice dated 31.03.2019 under Section 148 of the Act. After the impugned notice and in absence of income tax return, the notice under Section 142 (1) and 143(2) of the Act were issued on 21.08.2019. Accordingly to the case of the revenue, the assessee did not responded to the notices and thereafter, show cause notice dated 25.06.2019 was served to explain why the amount claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections came to be disposed of, the respondent ought to have given a reasonable time to the petitioner to approach this court. However, the respondent in utmost haste has proceeded further and passed the assessment order. 2. Reliance was placed upon the decision of the Bombay High Court in the case of Asian Paints Limited v. Deputy Commissioner of Income tax, 2008 (296) ITR 90 (BOM.) wherein the court has clarified that if the Assessing Officer does not accept the objections so filed by the petitioner, he shall not proceed further in the matter within a period of four weeks from the date of receipt of service of the said order on objections, on the assessee. It was submitted that the court has directed the Income Tax Officer concerned to follow the above procedure strictly in all such cases of reopening of assessment. It was submitted that the above principles were required to be followed by the Assessing Officer in the present case also. 3. Having regard to the submissions advanced by the learned advocate for the petitioner, the operation of the impugned assessment order dated 29.8.2019 (Annexure-N to the petition) is hereby stayed. Direct service is permitted. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was framed under Section 143(3) of the Act and same is sought to be reopened beyond the period of 4 years from the end of the relevant year and there was no any failure on the part of the assessee to disclose truly and fully necessary material facts for the assessment. 9. On the other hand, Mrs. Kalpana Raval, the learned Standing Counsel appearing for the revenue opposed the writ application, contending that the assessee at the stage of previous assessment proceedings, had not submitted an agreement to sell dated 04.08.2012, in support of the claim of deduction made under Section 54B of the Act and therefore, the conditions precedent to avail the benefit of deduction as provided under Section 54B of the Act are not satisfied. In this circumstances, the AO has rightly recorded the reasons for reopening of the assessment for the year under consideration and formed a belief that the income has escaped assessment, as during the previous assessment proceedings, the assessee failed to disclose the facts of purchase transactions and omitted to submit necessary documents in support of the claim. 10.Having heard the learned counsel for the respective parties and having gone throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to deduction under Section 54B was called for and the assessee had complied the same by furnishing the registered sale deed and agreement of purchase along with bank particulars. The previous assessment order at Annexure E, page-28 of the compilation of this writ application, shows that during the assessment proceedings, the AO had observed that the assessee had submitted all the details and were examined by him. The AO had discussed the issue of LTCG. The relevant extract i.e. para-4 of the assessment order is reproduced as under: para-4: Addition on account of Long term capital gain: During the course of assessment proceedings, it is seen that the assessee had claimed exemption of long term capital gain arising out of sale of immovable property of ₹ 1,86,51,572/- The details of this long term capital gain claimed were called for. From the details it is seen that the assessee has earned the long term capital gain of ₹ 1,86,51,572/- and because of this he has claimed the set off of the entire capital gain u/s. 54 of the I.T. Act. From the details it is seen that thought the assessee has claimed set off of long term capital gain of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge of opinion. It also appears that at the stage of previous assessment proceedings, the assessee had disclosed all the primary facts for the assessment and based upon the materials the AO did not disallow the deduction to the extent of ₹ 1,85,00,000/-. We take the notice of the fact that revenue has failed to show that which necessary facts were not disclosed by the assessee at the stage of previous assessment proceedings. Therefore, in these circumstances, we are of the view that no new material surfaced during the reassessment proceedings on which the AO could have formed a requisite belief with regard to escape of assessment, especially when the assessee has disclosed all materials fully and truly at the stage of original assessment proceedings. Reference may be made to the case of CIT Vs. Usha International Ltd , wherein, the Full Bench of Delhi High Court held that the reassessment will be invalid, in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. The reassessment proceedings in the said cases, will be hit by principles of change of opinion . 16. It would be appropriate to rely and refer the observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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