TMI Blog2023 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... notice has been issued by the AO on 30.07.2001, we observe from the notice that necessary ingredients, which were required to be mentioned for reopening beyond the period of 4 years has not been mentioned - we uphold that the reasons recorded by the AO for exercising jurisdiction under Section 147 is not in conformity with the provisions of Section 147 - we allow ground raised by the assessee. - ITA No. 1062/Bang/2004 - - - Dated:- 31-3-2023 - Shri George George K., Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri S.V. Ravishankar, Advocate For the Revenue : Shri Gudimella VP Pavan Kumar, JCIT ORDER PER: LAXMI PRASAD SAHU, A.M. This appeal by the assessee is directed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act in the name of the partnership firm which was not in existence is invalid in law on the facts and circumstances of the case. 6. Without prejudice whether any capital gains arises when the assets have been transferred at book value and consequently no capital gain is computable on the facts and circumstances of the case. 7. Without prejudice the authorities below were not justified in assessing the firm after it has ceased to exist on the facts and circumstances of the case. 8. The value adopted by the Assessing officer is not correct on the facts and circumstances of the case. 9. The appellant craves leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id schedule: Res. Plot at 1198, HAL II Stage, Bangalore Rs.4,13,535 -do- 1199 -do- Rs.3,95,120 -do- 2967 -do- Rs.4.38,240 The Actual cost or book value of the land has been reduced without offering the difference between cost and market value as on date of transfer, in the form of capital gains, thereby evading capital gains tax. The assessee firm has been dissolved w.e.f. 30.3.95 and the firm has been converted into a company. The assets of the firm required to be valued at market value and the difference between book value and market value required to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply was also filed by the assessee and the AO after considering the submissions did not make any addition on the disputed point. The learned A.R. also submitted that reopening has been done on the basis of audit objection which itself is change of opinion and in support of his argument he relied on the judgements placed on record. The learned A.R. further submitted that copy of reasons recorded is vague and in the reasons recorded there is no allegation upon the assessee for not disclosing fully and truly all material facts which were necessary for completion of the assessment which is a necessary ingredient for exercising jurisdiction under Section 147/148 of the Act. The case has been reopened beyond the period of 4 years, therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to make full and true disclosure. Therefore provisions of Section 147/148 of the Act are clearly applicable and issuance of notice under Section 148 of the Act is perfectly followed. In the proceedings before lower authorities the assessee itself has accepted that the firm has been converted into a joint stock company w.e.f. 03.04.1995 under Section 556 of the Companies Act and just before the dissolution of the assessee firm has transferred certain immovable properties to its partners which are clear from the assessment order. To examine the applicability of Section 45 of the Act certain material facts like date of conversion of the firm into joint stock company, date of transfer of assets to the partners, market value of such asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the firm into company took place only on 03.04.1995 and there was no obligation on the part of the assessee firm to declare the said information in the return of income for the year ending 31.03.1995. 7. After hearing the rival contention and perusing the entire material available on record and the orders of the authorities below, we noted that this case is posted before the Tribunal for the third time. The assessee has raised additional grounds cited supra in which ground No. 3 states that in the reasons recorded for issuance of notice under Section 148 of the Act there is no allegation that the assessee had not disclosed fully and truly all material facts necessary for assessment as per the proviso to Section 147 of the Act make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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