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TMI Blog2023 (9) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as follows: "1. On the facts and circumstances of the case and in law, reopening of the concluded assessment u/s. 143(3) dt.2-12-10 in absence of any fresh/new material, be treated merely change of opinion on the same material facts, is not permissible in the eyes of law, is liable to be quashed." "2. On the facts and circumstances of the case and in law, initiation of reassessment u/s. 147/148 is invalid, since it is assessed u/s. 143(3) dt.2-12-10 and beyond 4 years and there is no allegation in the reasons recorded which indicate any failure on the part of the assessee to disclose fully & truly all material facts necessary for the original assessment made u/s. 143(3) dt.2-12-10; initiation u/s. 147/148 is not permissible as per first proviso to sec.147; is liable to be quashed." 2. Succinctly stated, the assessee had filed her return of income for A.Y.2008-09 on 30.09.2009, declaring an income of Rs. 3,72,070/- [including Long term capital gain (LTCG) of Rs. 2,21,602/-]. Return of income filed by the assessee was processed as such u/s. 143(1) of the Act. 3. Original assessment was, thereafter, framed by the A.O. vide his order passed u/s. 143(3) of the Act dated 02.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t she has incurred cost of improvement of the property as legal heir of Late Shri Virendra Agarwal and that she has incurred Rs. 3,22,510/- over the years viz., for Murum with labour charges in 2001-02: Rs. 68,875/-, 2002-03: Rs. 87,259/-, 2003-04: Rs. 96,481/-, 2004-05: Rs. 45,2121- and in 2005-06 for construction of boundary wall & labour charges of Rs. 34,383/-, and claimed indexed cost of improvement of Rs. 4,01,816/-. She has submitted that as the property was in the name of her late husband the appellant had incurred the expenses as legal heir. This appears to be an afterthought as the AO brought on record that Late Shri Virendra Agarwal was passed away on 08.04.1999. The action of the AO in disallowing the cost of improvement is accordingly upheld and the ground no.3 is dismissed. 4.3. The ground no.4 is general and hence needs no adjudication." 6. The assessee, being aggrieved with the order of the CIT(Appeals), has carried the matter in appeal before me. 7. I have heard the ld. Authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, and considered the judicial pronouncements that have been presse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raipur Income Tax Officer-1(3) Dated : 28.03.2013 Raipur As stated by Shri Sunil Kumar Agrawal, Ld. AR, a conjoint perusal of the copy of the return of income filed by the assessee for the year under consideration i.e., A.Y.2008-09, and the original assessment framed in her case vide order passed u/s. 143(3) of the Act dated 02.12.2010, Page 29 of APB, reveals that not only the assessee had duly disclosed the transaction of sale of the property under consideration, i.e., land at Damur Talab (Kh. No.245/13) in her return of income and offered the resultant LTCG for tax, but the same after deliberations by the A.O was accepted by him while framing the original assessment vide his order passed u/s. 143(3), dated 02.12.2010. Our view above is fortified by a reference to the order passed by the A.O u/s. 143(3) dated 02.12.2010, which reads as under (relevant extract) : "2. The assessee is an individual deriving income from interest and misc. receipt and LTCG. During the course of assessment proceeding, and on discussion held with the counsel of the assessee, it is revealed that no books of account are maintained and income from job work receipt is shown on estimate basis only. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the Act, dated 28.03.2014. 13. Apart from that, I also concur with the claim of the Ld. AR that as the assessment in the case of the assessee was originally framed vide order passed u/s. 143(3), dated 02.12.2010, therefore, in the absence of satisfaction of either of two conditions as contemplated in the "1st Proviso" to Sec. 147, which had allegedly resulted in the income of the assessee chargeable to tax having escaped assessment, viz. (i). there was failure of the assessee to make a return under section 139 or in response to notice issued under sub-section (1) of section 142 or section 148; or (ii). there was the failure of the assessee to fully and truly disclose all material facts necessary for assessment; her case could not have been reopened beyond four years from the end of the relevant assessment year. Admittedly, there had been no failure on the part of the assessee to make a return under section 139 or in response to notice under sub-section (1) of section 142 or section 148 of the Act. Also, a perusal of the "reasons to believe" clearly reveals that it is neither a fact nor the case of the department that there was any failure of the assessee to fully and truly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed fully and truly all the material facts; therefore, by no means could she have been saddled with any failure to disclose fully and truly all material facts that were necessary for framing her assessment, which would have otherwise justified bringing her case within the realm of the extended period contemplated in the "1st proviso" of section 147 of the Act for validly reopening the same. 14. I, thus, in terms of my observations above, being of the view that the A.O had wrongly assumed jurisdiction and reopened the concluded assessment of the assessee, which was earlier framed by his predecessor vide order passed u/s. 143(3) dated 02.12.2010, therefore, quash the consequential assessment order passed by him u/s. 143(3) r.w.s. 147 dated 28.03.2014. 15. As I have quashed the assessment framed by the A.O for want of valid assumption of jurisdiction on his part, I refrain from adverting to and therein adjudicating the other contentions that have been raised by the assessee as regards the sustainability of the addition on the merits of the case, which, thus, are left open. 16. In the result, the assessee's appeal is allowed in terms of my observations above. Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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