TMI Blog2023 (3) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... I am satisfied and it is a fit case for issue of notice u/s. 148 , on the basis of reasons submitted by the AO and in our considered view, said satisfaction constitute a valid satisfaction as required under law and thus, we reject argument of the assessee. Thus we reject arguments of the assessee on the issue of validity of assessment and thus, we uphold the findings recorded by the Ld. CIT(A) to uphold re-opening and consequent re-assessment order. Additions made on account of computation of capital gain by adopting full value consideration in terms of provisions of section 50C(1) - Although, the assessee has requested to refer the matter to DVO in terms of provisions of section 50C(2) of the Act, but the AO has proceeded with computation of capital gains and adopted full value of consideration in terms of provisions of section 50C(1) of the Act. In our considered view, once the assessee objects for adopting full value of consideration and requests for reference to DVO, it is the duty of the AO to refer the matter to the DVO and find out correct fair market value of the property as on the date of sale. Since, the AO has failed to comply with the requirements of law, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y since there was no proper title that was in possession of the appellant for the said property. 11. For that the Commissioner of Income Tax (Appeals) ought to have referred the matter to the Valuation Officer u/s.50C(2) 12. For that the appellant objects to the levy of interest under sections 234B and 234C. 3. The brief facts of the case are that, the assessee is an individual filed his return of income for the assessment year 2006-07 on 19.10.2006, admitting total income of Rs. 1,84,740/-. The case has been subsequently re-opened u/s. 147 of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for the reasons recorded, as per which income chargeable to tax had been escaped assessment and accordingly, notice u/s. 148 dated 31.03.2013 was issued on the assessee. During the course of assessment proceedings, the assessee raised objection for non-serving of notice u/s. 148, dated 31.03.2013 and objections filed by the assessee has been disposed off by the Assessing Officer with relevant evidence, as per which the notice issued u/s. 148 of the Act dated 31.03.2013 has been served on the assessee, as per the acknowledgment of Postal Department which has been sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings. Therefore, the AR argued that there is change of opinion. The AR relied upon the following judgements: (i) Decision of the Hon'ble ITAT, Chennai in the case of Shri KR Jayaram vs. ACIT in ITA No.1698/Mds/2016 dated 17.10.2017. (ii) Full Bench decision of the Hon'ble Delhi High Court in the case of CIT vs. Usha International Ltd., 251. CTR 28. (iii) Bombay High Court decision in the case of Precilion Holdings Ltd., 262 Taxman 228. The decisions relied upon by the AR of the appellant are not applicable to the facts of the case. In the cases cited above, the Assessing Officer examined the issue in the original assessment and the asses see furnished the relevant information though no query was raised by the Assessing Officer and therefore, the Hon'ble Courts have held that re-examining of the same issue in the reopened assessment is not possible. Whereas, in the case of the appellant, the issue relates to applicability of the provisions of section 50C of the Act. The Assessing Officer never examined the applicability of the provisions of section SOC during the course of original assessment proceedings. Therefore, the question of change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 27 of the General Clauses Act, 1887. The date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression 'serve' means the date of issue of notice. The date of receipt of notice cannot be left to be undetermined dependent upon the will of the addressee. Therefore, to bring certainty and to avoid attempts of the addressee to evade the process of receipt of notice, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to section 143(2). In fact that is the only conclusion that can be arrived at to the expression 'serve' appearing in section 143(2). 9. In the above judgement it is made clear that it is the date of issue and not the date of service which determines the limitation period for the service of notice. In that case the Hon'ble Court also held that the date of receipt of notice cannot be left to be undermined dependent upon the will of the assessee. In order to bring certainty and to avoid attempts of the assessee to evade the process of receipt of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a result of transfer of capital asset. Under subsection (2) of Section SOC, where the assessee claims before any AO that the value adopted or assessed [or assessable] by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date or transfer and; the value so adopted or assessed [or assessable] by the stamp valuation authority under sub-section (l) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the AO may refer the valuation of the capital asset to a Valuation Officer. The appellant has not raised this issue during the course of assessment proceedings. Even during the course of appeal proceedings there is no material furnished establishing that the value adopted by the stamp valuation authority exceeded the fair market value. 13. The appellant has also not clarified whether the value determined by the Stamp Valuation Authority, i.e., guideline value is not disputed in any appeal or revision or no reference has been made before any other authority or Court or High Court. Since the conditions requited u/ s 50C(2) are not fulfilled, the value ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material with the AO to form a reasonable belief of escapement of income and thus, it is not a case of change of opinion. On the issue of satisfaction, he submitted that the Ld. CIT(A), while granting approval for issue of notice has recorded his reasons for approving issue of notice and thus, the arguments of the ld. Counsel for the assessee, for no proper satisfaction by the Ld. CIT(A) is in correct. He further submitted that, on the issue of merits, the matter has not been considered by the CIT(A) and thus, it may be remitted back to the Ld. CIT(A) to decide the issue on merits. 7. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. The first and foremost objection raised by the assessee for re-opening of assessment is non-serving of notice u/s. 148 of the Act, dated 31.03.2013. We find no merits in the arguments of the assessee for the simple reason that as per documents available with Assessing Officer, the notice u/s. 148 of the Act dated 31.03.2013 has been dispatched on the very same day and also served on the assessee within the reasonable time, which is evident from the Postal Department acknowledgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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