TMI Blog2022 (6) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be sustained in view of the judgement in the case of CIT v. Schwing Stetter India P. Ltd. [ 2015 (6) TMI 497 - MADRAS HIGH COURT] . Under the above facts and circumstances and respectfully following the judgement of Hon ble Supreme Court in the case of CIT v. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] and in the case of CIT v. Schwing Stetter India P. Ltd. [ 2015 (6) TMI 497 - MADRAS HIGH COURT] we set aside the order of the ld. CIT(A) on this issue and quash the reassessment order passed under section 143(3) r.w.s. 147 of the Act. The ld. DR could not file any counter statement against the cross objection filed by the assessee. Appeal of assessee allowed. - I.T.A. No.124/Chny/2018 And C.O. No. 58/Chny/2018 [in I.T.A. No.124/Chny/2018] - - - Dated:- 8-6-2022 - Shri V. Durga Rao, Judicial Member And Shri Manoj Kumar Aggarwal, Accountant Member For the Department : Shri Sajit Kumar, JCIT For the Assessee : Shri T. Banusekar, C.A. ORDER PER V. DURGA RAO, JUDICIAL MEMBER: The appeal filed by the Revenue and the Cross Objection filed by the assessee are directed against the order of the ld. Commissioner of Income Tax (Appeals) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 147 of the Act and dismissed the ground raised by the assessee. However, on merits, the ld. CIT(A) allowed the grounds. 5. The assessee preferred Cross Objection by objecting confirmation of reopening of assessment under section 147 of the Act, whereas, the Revenue preferred appeal against allowance of exemption under section 54EC and section 54F of the Act. 6. So far as Cross Objection filed by the assessee is concerned, besides challenging ld. CIT(A) s confirmation of the reopening of assessment, by filing additional grounds of CO, the assessee has also contended that there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for completing the original assessment and without prejudice to the claim that the income is long term capital gain, exemption under sections 54EC and 54F of the Act can be allowed even if the gain is to be held as short term capital gain. By referring to the grounds raised in the cross objection, the ld. Counsel for the assessee has submitted that the Assessing Officer did not record any reason that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be considered as the date of transfer. The explanation was acceptable. Thus, the date of transfer of the capital asset should be considered as the date on which sale proceeds towards IPR sale was received by the assessee. As evident from the bank statement of Axis bank for the financial year 2008-09, 03/11/2008 is the closing date. Hence, 03/11/2008 is the date of transfer of the capital asset. The explanation was found to be satisfactory and thus the deduction claimed under section 54EC is accepted. 8) Deduction under section 54F: During the hearing on 20/09/2011, the assessee stated that the house property at Shanti Avenue did not belong to him. The assessee was asked to submit proof in support of his claim that the house property at Shanti Avenue did not belong to him. This was asked because there was reason, to suspect that the assessee was stating this only to retain his claim of the deduction under section 54F as the deduction is not allowable in case where the assessee has more than one house property. The assessee asked for time till 26/09/2011 to prove the same. The assessee appeared on 26/09/2011 and produced a copy of the property assessment of the house pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reopening of assessment is liable to be quashed. 8.2 So far as reopening of assessment under section 147 of the Act after four years is concerned, the reasons must record that there was a failure on the part of the assessee to disclose material facts or reasons must lead to clear and direct inference that there was a failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. Further, reasons must indicate which material fact was not fully and truly disclosed. 8.3 On plain reading of the provisions of section 147 of the Act, the Assessing Officer can reopen the assessment after four years from the end of the relevant assessment year only when both the conditions provided in section 147 of the Act are satisfied. That is: 1. The Assessing Officer must have reason to believe that income or profits or gains chargeable to tax had escaped assessment and; 2. The Assessing Officer must have reason to believe that such escapement has occurred by reason of either omission or failure on part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year or failure on part of the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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