Appeal dismissed on assessment validity; capital gain assessable; issues referred back; objections to be addressed.

The Tribunal dismissed the appeal ground challenging the validity of the assessment reopening for the assessment year 2005-06. It rejected the claim on the assessability of capital gain from the sale of a capital asset due to failure to raise objections earlier. The Tribunal referred issues related to the assessment year 2004-05 back to the Assessing Officer for review. Matters concerning index cost and full value consideration were set aside for subsequent consideration. The appeal was partly allowed for statistical purposes, with certain objections to be addressed before a new order is issued.

---

---

Issues Involved:
1. Validity of reopening assessment
2. Assessability of capital gain from sale of capital asset for the assessment year 2005-06

Validity of Reopening Assessment:
The appeal raised concerns regarding the validity of the reopening of the assessment for the assessment year 2005-06. The assessee contended that the notice issued under section 148 was based on a wrong foundation and defective, as it was beyond four years and the alleged escapement of income was minimal. However, during the hearing, the assessee withdrew this ground, and it was dismissed as not pressed. The Tribunal dismissed ground no. 1 of the appeal accordingly.

Assessability of Capital Gain:
The main issue raised by the assessee was the assessability of capital gain from the sale of a capital asset in the assessment year 2005-06. The assessee claimed that the transfer of the asset had already been completed in the assessment year 1976-77 itself, as per specific sections of the Income Tax Act. However, it was observed that the assessee did not raise this objection before the authorities below. The Tribunal rejected this ground as it required a fresh investigation of facts not previously pleaded.

Regarding the grounds related to the assessment year 2004-05, it was noted that the Assessing Officer had initiated proceedings based on the sale deed dated 04.03.2004, which was known to the authorities. The Tribunal set aside these issues to the Assessing Officer for further examination, emphasizing that if the capital gain pertained to the assessment year 2004-05, the AO could reopen the assessment for that year.

Additionally, issues concerning the index cost of acquisition and full value consideration were deemed consequential and set aside for consideration after deciding the issue of taxability of the capital gain. The Tribunal partly allowed the appeal for statistical purposes, emphasizing that objections related to fair market value and full value consideration should be considered before passing a fresh order.

In conclusion, the Tribunal addressed the issues raised by the assessee regarding the validity of reopening the assessment and the assessability of capital gain, setting aside certain matters for further examination by the Assessing Officer and partially allowing the appeal for statistical purposes.

---