TMI Blog2021 (9) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... nk Account. All these aspects were called for by the Assessing Officer by issuing intimation and after considering the documents produced by the assessee, summons were issued to the partner of the firm, who had purchased the property, their Books of Accounts were perused and the AO having been fully satisfied that the transfer has taken place in terms of Section 2(47) of the Act in the Assessment Year 2004-05, had passed the scrutiny Assessment Order under Section 143(3). Admittedly, the Assessing Officer did not have any new or tangible material to show that the assessee failed to fully and truly disclose all particulars and the assessment warrants reopening - assessee has been put to sheer harassment on account of notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led return of income on 30.07.2010 declaring a total income of ₹ 4,46,870/-. The return was processed under Section 143(1) of the Act on 08.04.2011 and subsequently, the assessment was taken up for scrutiny and notice under Section 143(2) of the Act was issued and the Assessing Officer called for details. The details were furnished by the assessee and one of the details called for was in respect of the property which was sold by the assessee during the Financial Year 2009- 10 for a consideration of ₹ 5,67,30,000/-. The Assessing Officer questioned the assessee by stating that the capital gains was not offered to tax by the assessee in the returns for the AY 2010-11. The assessee explained by stating that the property was transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as completed under Section 143(3) of the Act and also having taken note of the facts that the assessee had in his return of income filed for AY 2004-05 had disclosed the transaction and the details of the long term capital gains were furnished and intimation was issued under Section 143(1) for AY 2004-05 vide notice dated 01.07.2005, in response to which, the assessee had submitted the proof of having deposited the capital gains as envisaged under Sub-Section 2 of Section 54 of the Act in the Indian Bank and a letter given by the Bank dated 07.08.2005 was also produced and subsequently, rectification order was also passed on 18.08.2005. Further, in the return of income filed for AY 2006-07 dated 31.10.2006, the assessee had disclosed the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Act. 6.In our considered view, moot question which was required to be decided in the writ petition was whether the reopening of the assessment was valid and whether it is a case of change of opinion. For such an exercise, the only issue to be considered was whether there was a transfer of the immovable property during the previous year relevant to AY 2004-05 or did the transfer take place at the behest of the appellant/assessee in the Assessment Year 2010-11. 7.Therefore, to decide the said question, we are guided by the definition of transfer as defined under Section 2(47) of the Act. If the assessee had executed the agreement of sale on 15.12.2003 and executed the registered General Power of Attorney on 19.12.2003 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details were sought for with regard to the deposit of capital gains, the information furnished by the assessee through his Chartered Accountant on 08.08.2005, the certificate issued by the Indian Bank, North Usman Road Branch, Chennai, dated 07.08.2005, and the order of assessment under Section 143(3) dated 30.10.2008, the present reopening would not have been made and could not have been made. Therefore, we are convinced that the reopening is a clear case of change of opinion and therefore, not valid in law. 8.For all the above reasons, the Writ Appeal is allowed and the order passed in the Writ Petition is set aside and consequently, the Writ Petition is allowed and the proceedings which are impugned in the Writ Petition are quashe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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