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TMI Blog2024 (7) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... d at Revenue Survey No. 4/A, Block No. 10/A, Moje Abrama, Taluka Kamrej, Surat (for short 'the subject property') on 06th February, 2012 by six co-owners. 2.1 The petitions, therefore, were heard together and are being disposed of by this common judgment and order. 2.2 For the sake of convenience, Special Civil Application No. 22046 of 2019 is treated as a lead matter. 3. The brief facts of the case are as under. 3.1 The petitioners along with other co-owners executed sale deed for value of Rs. 01,42,17,840/- of the subject property on 06th February, 2012. Stamp duty of Rs. 18,44,750/- was paid and market value of the property in terms of the stamp duty comes to Rs. 03,76,46,896/-. 3.2 Therefore, there is difference between sale consideration and the fair market value. Accordingly, provision of Section 50C of the Income Tax Act, 1961 (for short 'the Act') would apply in the hands of the petitioner. 3.3 The petitioner of Special Civil Application No. 22046 of 2019 filed return of income on 31st August, 2012 declaring total income of Rs. 21,23,670/-. Capital gains declared by the petitioner on sale of three properties which includes the property situated at Village Abrama being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 9. 3.9 The respondent - Assessing Officer thereafter issued the impugned notice under Section 148 dated 30th March, 2019 for A.Y. 2012-13 for reopening of the assessment after a period of almost four years with the prior approval of the Income Tax Commissioner-1, Surat on the basis that he has reasons to believe that the income has escaped assessment. The petitioner, on receipt of the notice, by letter dated 01st April, 2019 addressed to the respondent submitted that return filed under Section 139 (1) of the Act on 31st August, 2012 be treated as return in respect of the impugned notice dated 30th March, 2019 under Section 148 of the Act, and further requested to supply the copy of reasons recorded. The petitioner, thereafter, filed e-return of income in respect to the notice under Section 148 declaring same income as shown in the return filed under Section 139 (1) of the Act. 3.10 The respondent by letter dated 1th July, 2019 provided reasons recorded for reopening of the assessment, relevant portion of which is reads as under. "2. Brief details of information collected/received by the AO: In this case, information has been received from the ITO, Ward - 3(3)(2), Surat vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Assessee's share being 1/6th, the difference comes to Rs. 39,04,842. Accordingly, the provision of s. 50C is applicable to the assessee. Thus, the differential amount is required to be assessed and taxed in the hands of the assessee u/s. 50C of the Act. Therefore, the non-showing of the true and correct capital gain as per stamp valuation in the return of income has resulted in belief that the differential amount represents capital gain of the assessee which has escaped assessment." 3.11 The petitioner thereafter by letter dated 21st August, 2019 requested the respondent to furnish the certified copy of the statutory form containing the reasons recorded along with the approval taken under Section 151 of the Act. However, the respondent understood the said letter as objection and disposed of the same by order dated 04th October, 2019. The petitioner thereafter raised objection by letter dated 07th November, 2019 which was disposed of by order dated 13th November, 2019 by the respondent- Assessing Officer. Being aggrieved, the petitioner has preferred this petition. 3.12 Special Civil Application No. 22045 of 2019 is preferred by the co-owner whose case was also reopened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry made during the course of the original assessment by notice dated 26th February, 2015 wherein the Assessing Officer specifically asked details for valuation report submitted by the petitioner for Block No. 10A and 10B, to which the petitioner replied by letter dated 13th March, 2015. It was pointed out that there is no difference between jantri value and sale price so far as Block No. 10 is concerned and the difference pertains to Block No. 9 due to adverse features of the land at Block No. 9 and accordingly, the Assessing Officer made addition of Rs. 72,245/- being difference in case of petitioner of Special Civil Application No. 22046 of 2019 accepting that there is no difference between the jantri value and the sale price of the subject parcel of land situated at Block No. 10A and Block No. 10B. It was, therefore, submitted that in the reasons recorded for reopening, the Assessing Officer has taken valuation of Block No. 9 and not Block No. 10. 4.3 It was submitted that the impugned notice under Section 148 has been issued on the basis of the jantri rate adopted by the stamp valuation authority whereas the land in question has actual been transferred by agreement to sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer during the original assessment proceedings of the petitioner of Special Civil Application No. 22046 of 2019 and no scrutiny assessment is made in case of petitioner of Special Civil Application No. 22045 of 2019 who are also co-owners of the subject property. It was, therefore, submitted that there is no change of opinion as contended by the petitioner but in view of such fats that there was addition made by the Assessing Officer in case of co-owner, the same addition is also required to be made in case of the petitioners. 5.1 It was submitted that reopening has been made after evaluation and specific and tangible information received from ITO Ward 3(3)(2), Surat by letter dated 22nd April, 2015 that the assessee has transferred the property at a value below the valuation determined by the stamp valuation authority in violation of the provision of Section 50C of the Act and has furnished inaccurate particulars of income and accordingly, considering such information, the impugned notice for reopening was issued. It was, therefore, submitted that no inference may be made while exercising the extra-ordinary jurisdiction under Article 226 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .6 Learned senior standing counsel referred to and relied upon the decision of this Court in case of Yogendrakumar Gupta [(2014) 366 ITR 186/46 taxmann.com 56 (Guj.)] which is confirmed by the Apex Court by dismissing SLP reported in (2014) 51 taxmann.com 383 (SC). It was submitted that this Court has, in similar facts of the case before it, held that when the reopening is initiated, assumption of jurisdiction on part of the Assessing Officer based on fresh information, specific and reliable and otherwise sustainable under the law, challenge to reassessment proceedings warrant no interference. 5.7 Learned senior standing counsel Mr. Sanghani also relied on the decision in case of Surat District Co-op Milk Producers Union Ltd. v. Income-tax Officer reported in [2017] 77 taxmann.com 351 (Guj.) to submit that since the assessee did not deny higher valuation adopted by the stamp valuation authority by applying provision of Section 50C of the Act, it could be concluded that assessee failed to discharge its duty of true and full disclosure at the time of filing of return. 5.8 It was, therefore, submitted that both the petitions deserve to be dismissed. 6. Having heard learned advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent to justify the reassessment proceedings on the basis of the report obtained from the DVO in case of co-owner Prakash Jayantilal Patel making allegation of suppression of lower valuation for sale of land in question, the reasons recorded nowhere mentioned about forming reason to believe due to the report of the DVO in case of co-owner and therefore, reliance placed on the report of the DVO by the respondent in the affidavit-in-reply to justify the reopening is not tenable as no fresh material to justify the reassessment forming part of the reasons recorded can be pressed into service to justify the validity of the reassessment notice. 7. In view of the foregoing reasons, when the petitioner of Special Civil Application No. 22046 of 2019 has disclosed fully and truly all the material facts during the course of the original assessment, there was a change of opinion for reopening of the assessment by issuing the impugned notice under Section 148 of the Act. Therefore, the reliance placed on behalf of the respondent on the decision of Yogendrakumar Gupta (supra) would also not apply as the allegation in the said case pertains to the transaction with shell companies w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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