2018 (10) TMI 366

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....tioner had filed the return of income on 16.06.2010. On 28.04.2009, the petitioner had along with two other coowners, sold immovable property situated at Village:Udhna, for a declared sale consideration of Rs. 50 lakhs. In the return of income, the petitioner disclosed such sale and after adjusting the cost of improvement and indexed cost of acquisition, offered a sum of Rs. 2,45,900/by way of capital gain. Such return was not taken in scrutiny. To reopen such assessment, the Assessing Officer issued the impugned notice. In order to do so, he had recorded following reasons: "As per the information available with office, the assessee had sold an immovable property for consideration of Rs. 1,18,95,000/with SubRegistrar Office, Surat2, Udhan....

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....ation to tax. 5. The petitioner raised objections to the notice of reopening under a letter dated 09.10.2017. In such objections, he pointed out that the property was sold on 28.04.2009 for a sale consideration of Rs. 50 lakhs and not for Rs. 1,18,95,000/as stated in the reasons. He produced copy of the sale deed. He therefore contended that the reasons proceeded on wrong factual foundation. He also pointed out that he had filed the return of income, in which, he had declared his share of Rs. 16,66,667/of the sale consideration. After deducting the cost of acquisition and improvement charges, he also offered a sum of Rs. 2,45,900/by way of capital gain. He therefore contended that on both counts, the Assessing Officer had recorded wrong re....

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....s. The Assessing Officer has proceeded on completely wrong factual premises. The reasons therefore lack validity. II. Report of the subregistrar, Surat, referred to by the Assessing Officer in the order disposing of the objections was received only after recording reasons and issuing notice. Any reliance on such report would therefore be wholly impermissible. III. The Assessing Officer has attempted to improve the reasons in the affidavit in reply filed in the petition which is not permissible. In this respect, counsel relied on the judgment of Division Bench of this Court in case of Sagar Enterprises v. Assistant Commissioner of Incometax reported in [2002] 257 ITR 335 (Guj). 9. Learned counsel for the Revenue opposed the petition co....

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.... also offered his share of the declared sale consideration to tax as capital gain. The Assessing Officer may have dispute with respect to computation of such capital gain, he cannot simply dispute the fact that the assessee did file the return. Importantly, even the second factual assertion of the Assessing Officer in the reasons recorded is totally incorrect. He has referred to said sum of Rs. 1,18,95,000/as a sale price of the property. The assessee had produced before the Assessing Officer, the sale deed in which, the sale consideration disclosed was Rs. 50 lakhs. 12. The Assessing Officer may be correct in pointing out that when the sale consideration as per the sale deed is Rs. 50 lakhs but the registering authority has valued the pro....