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TMI Blog2024 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Nikunt Raval for learned advocate Ms. Kalpana Raval for the respondents. 2. Rule returnable forthwith. Learned advocate Mr. Nikunt Raval waives service of notice of Rule on behalf of the respondents. 3. Since the issue involved is in narrow compass, with consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 28.3.2021 issued under Section 148 of the Income-Tax Act, 1961 (for short 'the Act') for Assessment Year 2016-17. 5. The reasons recorded for issuance of the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase as a trade and business and disallowed the exemption claimed under section 54B. It was also mentioned in the assessment order that the land sold was not a capital asset rather stock in trade for which the Long Term Capital Gain is disallowed and the sale proceed would be treated as business income. 3. Analysis of information collected /received: As per data available in ITD/ITBA, the profile of the assessee is as under: Status of the assessee is Individual and filed in form ITR-3/4 and his source of income was Business, Long term capital gains and no agricultural income. For the last 3 years the assessee has shown his nature of business and source of income as tabulated below: Sr. No. Nature of business AY LTCG Business / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per section 2(13) of the Act, Business includes any trade, commerce or manufactures or any adventures or concern in nature of trade, commerce or manufacture. As per section 63AA of Bombay Land Revenue Code when agriculture land is sold or purchased for bona fide industrial purpose the status of land will consider as N.A land. The assessee involves in purchasing lands and selling them to various persons as series of transactions, it would be chargeable to tax under the head profit and gain from business/profession." 6. Learned Senior Advocate Mr. Tushar Hemani for the petitioner submitted that the impugned notice under Section 148 of the Act is without jurisdiction, as the same is issued beyond the period of four years from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that during the year under consideration, the petitioner sold the land by sale deed on 23.4.2008 as he has purchased the land by sale deed dated 23.4.2008 for total consideration of Rs. 4,50,14,400/- and out of the sale transaction, the petitioner was having the share of Rs. 3,09,47,400/-. It was submitted that the Assessing Officer was of the opinion that such transactions were in nature of trade and ought to have been treated as business income instead of LTCG. It was submitted that such error was pointed out by the audit party and it is permissible for the Assessing Officer to reopen the assessment on the basis of such error pointed out by the audit objection. In support of his submissions, reliance was placed on the decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the Assessing Officer would not have any jurisdiction to reopen the assessment when there is no failure on part of the assessee to disclose fully and truly all the material facts relevant for the assessment. Moreover, the reasons recorded by the respondent - Assessing Officer are also not correct as the assessee has never filed the return in Form ITR-3 or Form ITR-4, as stated in the reasons recorded by treating the income so as to treat the sale consideration received as a business income. The petitioner - assessee has filed the return of income in Form ITR-5 which is for the purpose of salary income and the other income from the capital gain and as such, the information recorded in the reasons is not correct and the entire re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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