9911796707
TMI Blog2023 (8) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... nces." 2. Succinctly stated, based on information, that the assessee, during the year under consideration, had sold an immovable property situated at Shankar Nagar Main Road, Raipur, for Rs. 85 lacs but had not disclosed capital gain arising from the said sale transaction in his return of income for A.Y. 2013-14, the A.O issued notice u/s. 148 of the Act dated 29.03.2018. 3. During the course of assessment proceedings, it was observed by the A.O that the assessee had sold the aforesaid immovable property admeasuring 2420 Sq. ft., situated at Near Vidya Hospital, Shankar Nagar Main Road, Raipur, on 13.09.2012 for a consideration of Rs. 87,15,500/-. Referring to the original return of income that was filed on 08.10.2014, it was observed by the A.O. that the assessee had failed to disclose the capital gain arising on the said sale transaction in the said return. 4. The A.O further observed that the assessee had thereafter, in response to the notice issued u/s. 148 of the Act, filed a return of income on 22.09.2018, wherein long-term capital gain (LTCG) of Rs. 32,29,238/- was disclosed by him after claiming deduction towards indexed cost of acquisition, indexed cost of improvement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regarding this sale and no capital gains have been shown/offered. However, in response to the notice u/s 148 of the Income Tax Act, 1961 assessee has filed his return of income for A.Y 2013-14 on 22.09.2018. In this return of income assessee has calculated long term capital gains to the tune of Rs 32,29,238/- after claiming indexed cost of acquisition of Rs 22,68,024/-, indexed cost of improvement of Rs 17,06,743/-, expenditure on transfer of Rs 1,75,000/- and deduction u/s 54/548/54D/54EC/54F of Rs 13,36,495/- ." From the above, it is clear that the appellant had not shown the sale of property in the original return and it is only in response to the notice issued u/s 148 of the Act that the appellant has filed the return showing the capital gains. The appellant has not attended before Assessing Officer and pointed out any assessments done earlier. Thus facts on record show that the facts pertaining to sale of immoveable property were not truly and fully disclosed hence there was reason to believe that income has escaped assessment and the issue of notice u/s 148 of the Act is found to be in accordance with income tax law and procedure. Therefore the re-opening of assessment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, the assessee, in compliance with the said notice, filed his return of income on 15.02.2016, wherein LTCG, on the transfer of the property mentioned above, was disclosed by him at Rs. 32,29,238/- (supra), Page 48-51 of APB. 9. For the sake of a better understanding of the issue involved in the present appeal, the facts therein involved are tabulated as follows: Sr. No. Date Particulars 1. 08.10.2014 Original return of income filed by the assessee declaring an income of Rs. 2,49,780/-. 2. 03.09.2014 Notice u/s. 143(2) of the Act was issued by the ITO-1(2), Raipur. 3. 14.01.2016 Notice u/s. 148 of the Act was issued by the Dy. CIT-1(1), Raipur. 4. 15.02.2016 Return of income filed by the assessee in compliance with the notice issued u/s. 148 of the Act dated 14.01.2016 (LTCG of Rs. 32,29,238/- on transfer of the property under consideration was disclosed by the assessee). 5. 31/03/2016 Original assessment order passed by the A.O u/s 143(3) of the Act, dated 31/03/2016 assessing the income at Rs. 34,79,020/-. 6. - Neither any order of assessment was passed in response to the return of income filed by the assessee in compliance to the notice issued u/s. 148 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed u/s. 143(3) dated 31.03.2016, Page 114-115 of APB. 12. Considering the aforesaid factual position, we find substance in the claim of the Ld. AR that now when the sale transaction of the property under consideration and also LTCG arising therefrom had duly been disclosed by the assessee in his return of income filed in response to the notice u/s. 148 dated 15.02.2016, which, thereafter, had duly been considered by the A.O while framing assessment u/s. 143(3) dated 31.03.2016; therefore, there could have been no justification for him to have reopened the concluded assessment of the assessee because the LTCG arising from the sale of the property above had escaped assessment. For the sake of clarity, we deem it fit to cull out the "reasons to believe" based on which the case of the assessee was reopened, as follows: "Reasons for issue of notice u/s. 148 Name and address of the Assessee Vijay Tondon 34, Sector-1, Geetanjali Nagar, Raipur PAN/GIR No. ABUPT1550H Status Ind. District/Circle/Range Raipur/Wd 3(1)/Range-3 Assessment year in respect of which it is proposed to issue notice u/s. 148 2013-14 There is credible information in possession that assessee Shri Vija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the very reason that the same is not based on any new material that had come to the notice of the A.O after the culmination of the original assessment by him vide his order passed u/s 143(3) of the Act, dated 31.03.2016, but is a clear case of assumption of jurisdiction u/s 147 of the Act based on a mere "Change of opinion." As an assumption of jurisdiction by the A.O for disturbing a concluded assessment of an assessee based on a "change of opinion" is not permitted under law, we, thus, are unable to subscribe to the jurisdiction assumed by the A.O in the present case u/s 147 of the Act. Our view above is fortified by the landmark judgment of the Hon'ble Supreme Court in the case of CIT, Delhi Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC). We, thus, in terms of our observations above vacate the assessment framed by the A.O u/s 144 r.w.s 147 of the Act, dated 31/10/2018, for two fold reasons, viz. (i). the belief arrived at by the A.O for reopening the assessee's case is based on misconceived and incomplete facts; and (ii). the reopening of the concluded assessment based on a mere "change of opinion" is prohibited under law. 15. We, thus, based on our observations abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
