TMI Blog2023 (9) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... edings a query had been raised by the AO and Petitioner had submitted copy of agreement relating to joint development at Chikhloli vide its Chartered Account s letter dated 17th March 2016. By a further undated letter, Petitioner, after referring to the ongoing scrutiny assessment proceedings and referring to the query that was raised during the assessment proceedings as to why the Development Agreement entered into by Petitioner with Sai Ashray should not be treated as transfer of land and taxed accordingly, explained in detail as to why there was no transfer of land . Thus the issue as to whether there was a transfer of land or otherwise was the subject of consideration before the AO during the assessment proceedings. As seen in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Sai Ashray Developers ( Sai Ashray ) for developing the land situated at Chikhloli, Ambernath. During the assessment proceedings under Section 143(3) of the Act, Petitioner, vide letter dated 17th March 2016, had filed a copy of the Development Agreement before the Assessing Officer ( AO ). The AO asked Petitioner as to why the Development Agreement should not be treated as transfer of the said land resulting in capital gains and taxed accordingly. Petitioner filed a reply and in the reply Petitioner explained that by entering into the Development Agreement, Petitioner has not transferred the land to Sai Ashray and specific reference was made to provisions of Section 2(47)(v) of the Act and Section 53A of the Transfer of Property Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny failure on the part of Petitioner to truly and fully disclose material facts. 7. Mr. Suresh Kumar submitted that Petitioner has filed original return of income treating the land in question as stock in trade in the books of accounts and hence, not a capital asset within the meaning of Section 2(47) of the Act. But the screenshot of the schedule of fixed assets held by Petitioner as seen in the balance sheet as on 31st March 2012 required for Assessment Year 2012-13, the land in question was treated as a capital asset and, therefore, Petitioner had misrepresented the facts by treating the land as stock in trade in her books of accounts instead of treating it as a capital asset within the meaning of Section 2(47) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing scrutiny assessment proceedings and referring to the query that was raised during the assessment proceedings as to why the Development Agreement entered into by Petitioner with Sai Ashray should not be treated as transfer of land and taxed accordingly, explained in detail as to why there was no transfer of land . Subsequently, the assessment order 31st March 2016 has been passed in which there is even a reference to the Joint Development Agreement between Petitioner and Sai Ashray of land at Chikhloli village. Therefore, it is clear that the issue as to whether there was a transfer of land or otherwise was the subject of consideration before the AO during the assessment proceedings. As seen in Aroni Commercials Ltd. v Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. This by itself demonstrates the fact that notice dated 28 March 2013 under Section 148 of the Act seeking to reopen assessment for A.Y. 2008-09 is based on mere change of opinion. However, according to Mr. Chhotaray, learned Counsel for the revenue the aforesaid issue now raised has not been considered earlier as the same is not referred to in the assessment order dated 12 October 2010 passed for A.Y. 2008-09. We are of the view that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment 10. This would also indicate that there was no failure to disclose any material fact. On that ground alone the notice dated 22nd March 2021 issued under Section 148 of the Act has to be quashed and set side. So also the impugned order dated 14th February 2022 disposing Petitioner s objections. Moreover, the other co-owner s case was also proposed to be reopened. The other co-owner Late Bharat Jayantilal Patel (since deceased) through legal heir Smt. Minal Bharat Patel had filed Writ Petition No. 1612 of 2022 which came to be disposed on 10th February 2023. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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