TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 1109
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....ssessee filed return of income for A.Y 2012-2013 declaring total income at Rs. 8,42,070/- which came to be accepted by the Assessing Officer. That thereafter, by impugned Notice dated 12th February 2016, the assessment for A.Y 2012- 2013 is sought to be reopened. That, the petitioner asked for the reasons for reopening vide letter dated 25th February 2016. The reasons came to be supplied after approximately nine months vide communication dated 23rd November 2016. The reasons recorded to reopen the assessment for A.Y 2012-2013 read as under : "In this case, the assessee has filed his return of income on 2nd July 2012 declaring total income at Rs. 8,42,070/-. On going through the return of income, it is found that the assessee has shown income of Rs. 8,22,245/- under the head of Long term capital gain. It is gathered from the sale deed of land that Mahesh Chimanlal Raval, PAN : AACHM4020Q [having 1/3rd share] along with five co-owners have sold an Agricultural land situated at revenue survey no. 21/A, Paiki 1, T.P No. 70, O.P No. 228, Village Amroli, District Surat for Rs. 6,25,00,000/-. Out of total consideration of sale, assessee has received Rs. 2,06,25,000/- being stake holder ....
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....r was permitted to proceed further with the reassessment proceedings, however, he was restrained from finalizing the reassessing proceedings. However, it appears that the Assessing Officer passed an order of assessment in haste on 26th December 2016. That, by way of draft amendment, the petitioner has challenged the re-assessment/assessment order dated 26th December 2016, as the same has been passed after filing of the present petition. 4. Feeling aggrieved and dissatisfied with the reassessment proceedings and the subsequent assessment order, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 5. Shri S.N Soparkar, learned Senior Advocate has appeared on behalf of the petitioner-assessee and Shri Sudhir Mehta, learned advocate has appeared on behalf of the respondent-Revenue. 5.1 Shri SN Soparkar, learned counsel for the assessee has vehemently submitted that the reopening of the assessment for A.Y 2012-2013 is absolutely bad in law and illegal, and therefore, deserves to be quashed and set-aside. It is further submitted by Shri Soparkar, learned counsel for the petitioner that from the reasons recorded to reopen th....
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....e determined by the registered Valuation Officer, and as such, the Assessing Officer has not pointed out any error in such report and merely proceeded on the value arrived at by the DVO. It is further submitted by Shri Soparkar, learned Sr. Advocate appearing for the petitioner that as held by the Division Bench of Bombay High Court in the case of Commissioner of Income-tax v. Puja Prints, reported in [2014] 360 ITR 697 [Bombay], reference to the DVO can be made only when the value adopted by the assessee is less than the fair market value and if the value of the asset shown by the assessee is much more than the fair market value, reference to the Valuation Officer could not be made. It is submitted that therefore also, when the reference to the DVO itself was not permissible, considering the pre-amended Section 55A of the Income-tax Act, the Assessing Officer ought not to have reopened the assessment, relying solely upon the valuation of DVO and that too without application of independent mind. 5.4 It is further submitted by Shri Soparkar, learned counsel appearing on behalf of the petitioner that in the present case, even the order of assessment has been passed in hot haste, wit....
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....ion. 6. The present petition is vehemently opposed by Shri Sudhir Mehta, learned advocate for the Revenue. 6.1 It is vehemently submitted by learned advocate Shri Mehta appearing on behalf of the Revenue that as now the order of assessment is already passed, and therefore, the petitioner would have a statutory alternative remedy available by way of an appeal before the learned CIT [A], and therefore, the present petition may not be entertained. 6.2 It is further submitted by Shri Sudhir Mehta, learned counsel for the Revenue that even otherwise, in the facts and circumstances of the case, it cannot be said that the reopening of the assessment is bad in law. It is further submitted that in the present case, the reopening of the assessment for A.Y 2012-2013 is within a period of four years. It is submitted that the original assessment was under Section143 [1] of the Act, and therefore, there was no detailed scrutiny of the claim made by the assessee. It is submitted that therefore, the Assessing officer is justified in reopening the assessment for A.Y 2012-13. It is further submitted by Shri Sudhir Mehta that even otherwise, the DVO's report can be a piece of information on the ba....
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....991 was estimated at Rs. 77,44,375/- by the registered Valuer for calculation of long term capital gain. Accordingly, the cost of acquisition of the share of the assessee in the land in question was arrived at Rs. 25,22,644/- and after indexation, the long term capital gain was arrived at Rs. 8,22,245/- which was shown by the assessee at the time of filing of the return. It is submitted that on perusal of the Valuation Report, it was noticed that the value estimated by the registered valuer as on 1st April 1981 was on the higher side and in variance with its fair market value, and the fair market value of the land as on 1st April 1981; as per the DVO, Surat estimated at Rs. 10,19,250/- as on 1st April 1981, accordingly, the one-third share of long term capital gain in the case of the assessee works out to Rs. 1,79,84,633/-, and therefore, the difference of Rs. 1,71,62,388/- has escaped the assessment. It is submitted that therefore, the Assessing Officer had a valid reason to believe that the income of Rs. 1,71,62,388/- has escaped the assessment within the meaning of Section 147 of the Act. It is submitted that notice under Section 148 of the Act has been rightly issued. It is sub....
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.... on the higher side and in variance with the fair market value which has resulted into escapement of income from assessment. 9.1 It is true that in the present case, there was a delay in supplying the reasons recorded by the Assessing Officer and thereafter the assessment order has been passed on 26th December 2016. However, it is required to be noted that as such, the last date for completing the assessment was 31st December 2016 otherwise, the assessment was getting time bared and therefore, the Assessing Officer had no other alternative but to pass an order of assessment under Section 147 of the Act on 26th December 2016. Therefore, prima facie, it can be said that in the present case, the assessee had not followed the time bound programme/limit prescribed by this Court in the case of Commissioner of Income-tax v. Puja Prints [Supra] and in the case of Commissioner of Income-tax v. Gauranginiben S. Shodhan [Supra]. However, considering the affidavit-in-reply and material on the record so also the order of assessment, it appears that in the case of brother of the assessee and the co-owner of the very land ie., in the case of Shri Ashwinkumar Chimanlal Raval, the Assessing Office....