TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 1603
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....d also short term capital gain. Subsequently, the Assessing Officer noticed that income has escaped assessment and reopened the case for recording the reasons under section 147 of the Income Tax Act as under : Office of the Asstt. Commissioner of Income-tax Circle 4(1) Aaykar Bhawan, Room No. 514, Sector 17-E,Chandigarh 1. Name of the assessee : Shri Vinod Malhotra SCO 305, Sector 35 B Chandigarh. 2. Asstt. Year 2008-09 3. PAN AAVPM8609A Reasons u/s 148 of the IT Act,1961 Assessment in this case was completed u/s. 143(3) at an income of Rs. 9,63,870/- against the returned income of Rs. 7,92,320/-. It has been noticed that as per computation filed by the assessee vide his letter dated 14.01.2010, long term capital gain was declared on sale consideration of SCO 6, Sector 26, Chd. at Rs. 33,60,933/- (l/3rd in 50% share). The computation of long term capital gain of the assessee is reproduced here under:- Long Term Capital Gain SCO 6, Sector 26, Chd (l/3rd in 50% share) 18/12/2007 Sale Consideration Rs. 33,60,933/- Less: Indexed Cost Purchase Price (l/3rd in 50%.share) Rs. 30.55.919/- ....
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..... Sd/- 23.09.2011 ( Poonam Sharma ) Asstt. Commissioner of Income Tax Circle 4(1), Chandigarh." 2(i) Therefore, the Assessing Officer issued notice under section 148 of the Act on 19.09.2011 requiring the assessee to file his return within 30 days from the date of service of the notice. The notice was served on 23.09.2011 and in response to the said notice, the assessee filed his return of income on 18.10.2011. The Assessing Officer issued questionnaire which was responded by assessee time to time. Perusal of the record shows that assessee has sold his share in SCO 6, Sector 26, Chandigarh on 18.12.2007, Sale Deed of which is placed on record. As per Sale Deed, the value of the property for the purpose of Stamp |Duty was determined at Rs. 6,08,89,000/- (50%) in which the assessee has 1/3rd share. The assessee was confronted and asked to explain why the value of the property may not be taken as per provisions of Section 50C(1) of the Act. The assessee filed the reply which is quoted in the assessment order in which the assessee briefly explained that the share of the assessee is lesser and that purchaser has alrea....
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.... is under regular treatment. It is also stated in the affidavit that for the daily routine activities also, assessee is partially dependent on others. 5. On consideration of rival submissions and material on record, we are satisfied that assessee was prevented by sufficient cause from filing the appeal within the period of limitation, therefore, delay in filing appeal is condoned. 6. The assessee in the present appeal has challenged the addition of Rs. 2,32,86,175/- on account of long term capital gain and addition of Rs. 1,49,440/- on account of violation of Section 40(a)(ia) of the Act. 7. The assessee also filed application for admission of the additional ground of appeal challenging the upholding of the re-opening of assessment under section 147/148 of the Act. It is stated that the issue of re-opening of the assessment was challenged before ld. CIT(Appeals) and ld. CIT(Appeals) also gave findings of the same, however, due to unintentional and inadvertent mistake, this ground could not be taken up in the ground of appeal filed before the Tribunal. It is stated that this issue is legal in nature and arisen out of the orders of the authorities below and do not require any fres....
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.... was served upon assessee on 23.09.2011. Therefore, it may be typographical error in issuing notice under section 148 of the Act. 11. After considering rival submissions, we do not find any justification to sustain the impugned orders regarding re-opening of the assessment under section 147/148 of the Act. Hon'ble full Bench of Delhi High Court in the case of Kelvinator of India Ltd. 256 ITR 1 by following circular no.549 of CBDT held that on mere change of opinion of AO cannot be a ground for re-assessment and that amendment of sec. 147 w.e.f. 1.4.89 has not altered the position. Hon'ble Gujrat High Court in the case of Garden Silk Mills P. Ltd. 237 ITR 668 held that "however wide the scope of taking action u/s 148 of IT Act, it does not confirm jurisdiction on change of the interpretation of a particular provision earlier adopted by the assessing authority. For coming to the conclusion that there has been excessive loss or depreciation allowance or that there has been under assessment or assessment at a lower rate or for applying other provisions of explanation 2 to sec. 147, it must be on material and it should hav....
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....at the petitioner had wrongly claimed certain deductions which he was not entitled to. The reassessment proceedings initiated in the year 2004 were not valid. 12. It is not in dispute that earlier the original assessment was completed under section 143(3) on 06.12.2010. The assessee in the computation of income disclosed long term capital gain on account of sale of property in question i.e. SCO 6, Sector 26, Chandigarh and has disclosed the long term capital gain. The assessment record is produced for our perusal which contained the queries raised by the Assessing Officer on the issue of long term capital gain. The replies of the assessee are also available on record which also shows that assessee has furnished the evidence of the sale of the property in question before Assessing Officer at assessment stage. It would, therefore, show that assessee disclosed complete facts in the return of income as well as at the assessment stage with regard to long term capital gain on account of transfer of the property in question. The ld. DR also filed copies of the order-sheet written by the Assessing Officer which also shows that Assessing Officer examined this issue of long term capital ga....
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....recorded under section 148 of the Act with notice under section 154/155 of the Act, it is clear that same facts and reasons are recorded in notice under section 148 of the Act as well as notice under section 154 of the Act. The assessee filed a reply dated 19.09.2011 in response to the notice under section 154 of the Act and explained that the property in question is disputed property since its purchase. The assessee and other co-owners cannot get the full property registered in their own names due to the dispute amongst the sellers family in 2003 which exists till date. It was also stated that the amount of Rs. 1,49,440/- was paid to 9 persons and hence, TDS was not required to be deducted, so there is no violation of Section 40(a)(ia) of the Act. The assessee also explained that Section 50C is highly debatable issue and there is no mistake apparent on record. The Assessing Officer dropped the proceedings under section 154 of the Act vide order-sheet entry dated 23.09.2011. The said order-sheet reads as under : "Keeping in view the mistake and reply filed by the assessee, since it being a mistake not apparent....