TMI Blog2023 (8) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation. As such, the petitioner is not granted any indulgence on the first ground. Reasons to believe - It is seen from the records, as enclosed to this writ petition, that the petitioner s transaction for the subject land with M/s. SSS Realty and Co. is declared in the returns filed and it would be useful to refer to the different notes where there is a reference not just to the Revaluation Reserve as mentioned consequent to the transaction, but the transaction itself. If the AO has repeatedly asked pointed questions and clarifications about the transaction in the light of the declarations made in the Returns, but without additions while framing assessment u/s 143(3) there must be a presumption that the Assessing Officer has applied his/her mind and has framed an opinion. In this regard, a useful reference could be made to the decision of Kelvinator of India Ltd. [ 2002 (4) TMI 37 - DELHI HIGH COURT] wherein it is exposited that in terms of Clause (e) of Section 114 of the Indian Evidence Act 1872, the judicial and official acts have been regularly performed. If repeated and detailed queries are asked after the issuance of notice under Section 143(2) of the I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diligence - Delhi HC in the case Consolidated Photo Invest Vs ACIT d) Failure on part of the Assessing Officer to even touch the essential aspect of taxation Civil Appeal No 2732 of 2007 Income Tax Officer Ward No. 16(2) Vs. M/s TechSpan India Private Ltd. Anr. 4. The aforesaid are stated in the backdrop of the following. The transfer of rights in the immovable land in Sy.No.139/2 of Hosur Road, Koramangala, Bengaluru to M/s. SSS Realty and Co in which the petitioner holds 99% shares is not fully disclosed inasmuch as the petitioner has not mentioned in the Returns that the value of this property was revalued at Rs. 21,57,75,680/- as a consequence of transfer of this property. The petitioner, who should have added the value of Rs. 21,49,44,377/- for the computation of book profit as per Clause J to Explanation-1 of Section 115JB of the I.T. Act, has not declared capital gains for this transfer. 5. The petitioner s principal objections to the reasons assigned are two fold. Firstly, there is no deliberate failure to truly and fully disclose the transaction with M/s. SSS Realty and Co., and because the assessment is proposed to be opened after a lapse of four [4] years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of a subsequent year enforces correction in the preceding year when the issues are found identical. 9. It is indeed trite that if the assessment is to be reopened after four [4] years as contemplated under the first proviso to Section 147 of the I.T. Act [as it stood in the relevant time] there should be allegations of failure to truly and fully disclosed material facts unless the other conditions are satisfied (The other conditions would be the failure to make a return under Section 139 or in response to a notice issued under Section 142 (1) or Section 148 of the I.T.Act). As argued by Sri. E.I. Sanmathi, in the present case the reassessment is because there is a failure to disclose material fact truly and fully, and according to Sri. S.Annamalai, there is not even an allegation in this regard. In paragraph No.5 as aforesaid there is specific assertion that discrepancies were detected during the course of scrutiny proceedings for the assessment year 2016- 2017 and during the survey proceedings under Section 133A of the I.T.Act carried out at assessee s premises on 06.12.2018. 10. This Court must ask the question whether the allegation that there is failure to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has responded to this notice on 29.02.2016 furnishing additional information such as a copy of the Partnership Deed, ledger extract of the details of the investment made in M/s. SSS Realty and Co., its financial statement, and a note on creation of Revaluation Reserve (Rs. 21.49 Cr) with relevant documents. Insofar as the query on Revaluation Reserve (Query No.6 in the notice dated 23.10.2015) , the petitioner has furnished a note appended as Annexure 1 to its submission dated 28.12.2016 (Annexure-L). It is stated in this note that the petitioner has revalued the property at Rs. 21,57,75,680/- on the basis of fair market value as certified by an independent valuer and the difference between the book value and the book value on the date of the revaluation Rs. 21,49,44,337/-, is shown as Revaluation Reserve. A copy of the valuation report is also furnished. 14. The Assessing Officer, in the light of these disclosures, while framing the assessment order dated 29.12.2016 under Section 143(3) of the I.T. Act has made certain addition for the purposes of Section 115JB of the Act but without any other addition because of the subject transactions. In these circumstances, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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