TMI Blog2023 (9) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... t u/s. 143(3) r.w.s 147. Assessee had disclosed 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. Thus 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) therefore, quash the consequential assessment order passed by him u/s. 143(3) r.w.s. 147 - Assessee appeal allowed. - Shri Ravish Sood, Judicial Member For the Assessee : Shri Sunil Kumar Agrawal, CA For the Revenue : Shri Satya Prakash Sharma, Sr. DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 20.03.2023, which arises from the order passed by the AO under Sec. 143(3) r.w.s. 147 of the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed u/s. 143(3) of the Act dated 02.12.2010. 5. Aggrieved the assessee carried the matter in appeal before the CIT(Appeals), who partly allowed the same. For the sake of clarity, the observations of the CIT(Appeals) are culled out as follows: 4. The assessment order, grounds of appeal and the submissions of the appellant made through statement of facts have been perused. The AO reopened the assessment after obtaining proper approval and by issue of the notice u/s. 148. It was noticed by the AO that there was wrong claim of the appellant in so far as the year of acquisition of the property is concerned. Therefore, the ground no.1 regarding the assessment and reopening of the same is dismissed. 4.1. The ground no.2 is with regard to determining the cost of acquisition of the property. It is noticed that the AO took the cost of acquisition of the property at Rs. 9000/-. However, the appellant submitted that the property was purchased on 17.04.1982 by her husband Shir Virendra Agarwal and the cost of registry and other Govt charges amounting to Rs. 998/- was incurred for registering the property and that the indexed cost of acquisition would be Rs. 50,540/- (Rs. 9998/109*551 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial facts necessary for her assessment; therefore, we shall first deal with the same. 9. The Ld. AR in order to buttress his aforesaid contention has relied on the following judicial pronouncements: (i) A J Associates Anr. Vs. ACIT (2023), Writ Petition No.2435 of 2022 dated 4th May, 2023 (ii) Milton Plastics Ltd. Vs. DCIT (2023) Writ Petition No.735 of 2005 dated 13.03.2023 (iii) Ananta Landmark P. Ltd. Vs. DCIT (2021), Writ Petition No.2814 of 2019 (iv) Gopal Rice Industrial Vs. DCIT, ITA No291/RPR/2017 dated 17.10.2022. 10. On a perusal of the records, I find substance in the claim of the Ld. AR that the A.O. had dislodged the concluded assessment of the assessee based on a mere change of opinion . Before proceeding any further, it would be relevant to cull out reasons to believe which had formed the very basis for reopening the case of the assessee, as follows (Page 5 of APB) : Reasons for issue of notice u/s. 148: In this case the assessee filed return of income on 30.03.2009 showing total income of Rs. 1,50,464/- AND LTCG of Rs. 2,21,602/-. The assessment was completed u/s. 143(3) on 02.12.2010 determining the income at Rs. 2,20,464/- and LT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,464/- Add: As discussed in para-2 above. Rs. 70,000/- Total income Rs. 2,20,464/- Long-Term Capital Gains Rs. 2,21,602//- 11. Based on the aforesaid factual position, it transpires that the transaction of sale of property under consideration a/w. complete details of the cost of acquisition and improvement had not only been disclosed by the assessee in her return of income but the same had also been considered by the A.O. while framing the original assessment in her case. Considering the facts above, I find substance in the claim of the Ld. AR that concluded assessment in the case of the assessee had been reopened by the A.O not based on any fresh material coming to his notice after the culmination of the original assessment proceedings but on the same set of facts as were there before his predecessor while framing the original assessment vide his order passed u/s. 143(3) dated 02.12.2010. 12. On a careful perusal of the aforesaid reasons to believe that had formed the basis for reopening the assessee s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aped assessment because of failure on her part to make full and true disclosure of all material facts necessary for her assessment. On the contrary, the A.O. holding a belief that LTCG on sale of property had been under assessed by his predecessor while framing the original assessment, thus, for the said reason, had reopened her concluded assessment. Based on our observations above, we are inclined to accept the claim of the Ld. AR that as the completed assessment in the case of the assessee had been reopened by the A.O by issuing notice u/s. 148 of the Act, dated 29.03.2013, i.e., beyond four years from the end of the relevant assessment year i.e., A.Y 2008-09, therefore, the assessment so framed in absence of valid assumption of jurisdiction on his part could otherwise also not be sustained and is liable to be struck down on the said count itself. Our view above that as per the mandate of the 1st proviso to Sec. 147 of the Act, the reopening of a concluded assessment beyond four years from the end of the relevant assessment year, inter alia, in the absence of any failure of the assessee to disclose fully and truly all material facts which were necessary for her assessment is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
