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TMI Blog2024 (9) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of executing sale deed on 23.5.2014. The share of the petitioner in the sale consideration was Rs. 1,39,00,000/-. 2.2 From the aforesaid sale consideration received by the petitioner, following properties were acquired : "(A) A residential property being Bungalow No. 1, Shri Niketan Co. Op. housing society limited purchased vide two conveyance deeds executed on 02.03.13 viz. (1) one conveyance deed executed with Piyushbhai Kirtikumar Patel and Jagruti Piyush Patel (who owned 50% share in the said bungalow) for Rs.32,00,000/- and (2) one conveyance deed executed with Kirtikumar Shantibhai Patel (who owned balance 50% share in the said bungalow) for Rs.33,00,000/-. (B) Three agricultural lands vide three separate conveyance deeds executed on 28.05.15, 20.05.14 and 08.10.13 and share of the Petitioner in the newly acquired agricultural land aggregated to Rs. 65,95,762/-." 2.3 The petitioner filed return of income for the year under consideration on 17.3.2016 declaring income of Rs. 4,71,910/- wherein the capital gain on sale of above-referred agricultural land was disclosed and the petitioner had also claimed deduction of Rs. 65,95,762/- under Section 54B of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 furnished a detailed justification of his claim of deduction under Sections 54F and 54B of the Act. 2.9 Thereafter, the assessment was framed under Section 143 (3) of the Act by an order dated 13.12.2017 without disturbing the return of income filed by the petitioner. Thereafter, impugned notice dated 31.3.2021 under Section 148 of the Act came to be issued upon the petitioner seeking, inter-alia, to reopen the case of the petitioner. The respondent supplied copy of reasons for reopening vide letter dated 27.7.2021. 2.10 The petitioner submitted his objections vide letter dated 3.9.2021. The respondent, however, vide letter dated 23.2.2022 disposed of the said objections and held that reopening is justified. 2.11 Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of present petition for the aforesaid reliefs and also challenges the impugned notice under Section 148 of the Act. 3. We have heard learned Senior Advocate Mr. Tushar Hemani with Ms. Vaibhavi Parikh for the petitioner and learned advocate Mr. Karan Sanghani for learned advocate Mrs. Kalpana Raval for the respondent. 4. Learned Senior Advocate Mr. Tushar Hemani for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through all the materials provided by the petitioner at the time of scrutiny inquiry and thereby, the revenue authorities could not have assumed the jurisdiction under Section 148 of the Act just to examine another facet of the same claim. He, therefore, urged this Court to allow the present petition. (4) Lastly, learned Senior Advocate submitted that the sanction for issuance of notice under Section 148 of the Act as envisaged in Section 151 of the Act has not been obtained in correct perspective and the same has been granted without application of mind and in mechanical manner. Thus, the impugned notice under Section 148 of the act vitiates on the ground of improper sanction. 4.1 By making above submissions, learned Senior Advocate urged this Court to allow the present petition. 5. Per contra, learned advocate Mr. Karan Sanghani for the respondent, while supporting the impugned notice, has made the following submissions : (1) Learned advocate Mr. Karan Sanghani, at the outset, raised the preliminary objection in respect of maintaining the petition on the ground of availability of statutory alternative remedy. He submitted that reopening of the assessment is sought well with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove submissions, learned advocate Mr. Karan Sanghani urged this Court to dismiss the present petition. 6. Having heard the learned advocates for the respective parties and having gone through the material on record, a short question that falls for consideration of this Court is whether the impugned notice under Section 148 of the Act based on reasons recorded can be said to be the change of opinion? 7. So as to decide the aforesaid question, at the outset, it is required to be kept in mind the reasons recorded by the Assessing Officer so as to assume jurisdiction under Section 148 of the Act, which, therefore, is extracted herein-below : "2. Brief details of information collected/ received by the AO: The assessee had sold an agriculture land situated at Moje, Varnama, Block No. 285 for a consideration of Rs. 4,02,00,000/- on 21.04.2014 and his share therein was Rs. 1,39,00,000/-. The assessee has claimed deduction of Rs. 68,39,149/- for purchase of new house u/s. 54F and deduction of Rs. 65,95,762/- for purchase of new agriculture land u/s. 54B of the Act. On perusal of the purchase deeds, it is seen that the house was purchased on 02.03.2013 which was registered with two docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 54B of the Act, investment to purchase a new agricultural land must be made within a period of 2 years from the date of transfer of old asset. However, in the instant case, as tabulate above, the assessee has sold the agricultural Land Block No. 285, Old Survey No. 277, 278 ETC Moje Varnama Dist. Vadodara on 23.05.2014 and purchased three sets of agricultural land: Agricultural Land at Gam Kajpur, Vadodara on 28.05.2015 BRA-8/RUL/915/2015 Agricultural Land at Gam Kasor Tal Anand on 20.05.2014 AND-1/5286/2014 Agricultural Land at Gam Fathepura, Vadodara BRA-8/Rural/948/2013 on 08.10.2013 Agricultural land at Gam Kajpur, Vadodara was purchased within the stipulated period in the section 54B of the Act whereas Agricultural Lands at Gam Kasor and at Gam Fathepura were purchased prior to the date of transfer of impugned agricultural land i.e. after 23.05.2014. Thus, the assessee has not fulfilled the condition laid down as per section 54BF & 54B of the Act and has claimed excess deduction under these sections which was required to be disallowed and thus escaped from assessment. 5. Findings of the AO: Following conditions should be satisfied in order to avail exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has sold the agricultural Land on 23.05.2014 and purchased three sets of agricultural land; out of which Agricultural land at Gam Kajpur, Vadodara was purchased within the stipulated period in the section 54B of the Act whereas Agricultural Lands at Gam Kasor and at Gam Fathepura were purchased on 20.05.2014 & 08.10.2013 which is prior to the date of transfer of impugned agricultural land i.e. after 23.05.2014. thus, the assessee had not fulfilled one of the conditions laid down in section 54F & 54B of the Act to avail the deduction under these sections. Therefore Sum of Rs. 68,63,149/- and Rs. 52,38,149/- are not allowable as deduction under these sections and these sums are chargeable to tax which had escaped the assessment for A.Y. 2015-16. Hence, notice u/s 148 of the I.T. Act 1961 is to be issued for the A.Y. 2015-16." 8. Bare perusal of the reasons for reopening, the reopening broadly on the ground that the petitioner has not fulfilled the conditions prescribed for claiming deduction under Sections 54B and 54F of the Act. The case of the respondent appears to be that the petitioner had sold the agricultural land during the year under consideration and claimed deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed); (c) Agricultural lands acquired out of sale proceeds thereof (in respect of which deduction under section 54B of the Act has been claimed); Explanation in relation to the fresh investments as well as claim of deduction under section 54B & 54F was furnished (Point No.4d)." 11. The then Assessing Officer also issued show cause notice dated 24.11.2017 upon the petitioner to show cause as to why the deduction under Section 54 of the Act should not be withdrawn, to which the petitioner has furnished detailed submissions in relation to justification of claim under Sections 54B and 54F of the Act. The then Assessing Officer thereafter having considered all the materials on record and the submissions and the justification provided by the petitioner, framed the assessment order under Section 143 (3) of the Act without disturbing the original return of income of the petitioner. 12. Considering the aforesaid admitted facts and keeping in mind the reasons so recorded for reopening, in our considered opinion, it cannot be said that the respondent authorities have come into possession of any information and/or any tangible material which suggests escapement of income. On the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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