2017 (1) TMI 1369

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....nt for AY 200910 alleging that income chargeable to tax has escaped assessment under Section 147 of the Income Tax Act. 2.0. The facts leading to the present petition in nutshell are as under: 2.1. That the assessee filed its original return of income for AY 200910 on 17.12.2009 declaring the total income of Rs. 3,47,29,400/and agricultural income at Rs. 78,250/. During the year under consideration, the assessee sold the the land situated at Sarkhej after obtaining appropriate permission from the Collector, Ahmedabad to sell the said land as agricultural land. The petitioner claimed the exemption under Section 54 B of the Act of Rs. 1,37,11,725/against capital gain arising out of the sale of the aforesaid land. It appears that thereafter,....

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.... the year under consideration the assessee had sold land of Sarkhej Survey No. 335 and 344. The assessee had shown short term capital gain of Rs. 3,39,25,411/after claiming exemption u/s 54 B of the I.T. Act. On perusal of the sale deeds it is seen that the sale deeds are executed for non agriculture purpose. Hence, the assessee was not fulfilling the basic conditions as laid down in the Section 54B of the I.T. Act, 1961 for claiming exemption u/s 54 B of the I.T. Act. Therefore, such exemption of Rs. 1,37,11,725/u/ s 54B of the Income Tax Act, 1961 is not allowable. In view of the above facts, I have reason to believe that by reason of failure on the part of assessee to disclose fully and truly all material facts necessary for his assess....

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....ugned reopening of the proceedings is nothing but change of opinion of the subsequent Assessing Officer which is not permissible. 3.2. It is further submitted by Shri Divatia, learned advocate for the petitionerassessee that even otherwise it cannot be said that there was any failure on the part of the assessee in not disclosing the true and correct facts while claiming exemption under Section 54 B of the Act. It is submitted that while framing the reassessment / assessment under Section 143(3) of the Act, the sale deeds executed by the assessee were very much available on record with the AO. It is submitted that thereafter the AO did not disturb the exemption granted under Section 54B of the Act. It is submitted that even otherwise belief....

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....l Application. 5.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that in the present case assessment for AY 200910 is sought to be reopened beyond the period of four years from the relevant assessment year. Therefore, unless and until, it is found that there was any failure on the part of the assessee in not disclosing the true and correct facts which has resulted into escapement of tax from assessment, reopening is not permissible. Therefore, to reopen the assessment beyond the period of four years, proviso to Section 147 of the Act are required to be satisfied. In the present case, it is required to be noted that after the original assessment was framed under Section 143(1), ....