TaxTMI 
TaxTMI 
2019 (6) TMI 528
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....n law and on facts in upholding the reopening of the assessment u/s 147 of the I.T. Act, 1961 merely on the basis of DVO's valuation report and without recording any independent satisfaction. 4) That the Ld. C.I.T. (Appeals)-1, Kanpur has erred in law and on facts in upholding the validity of the reference made by the Ld. A.O to the Valuation Officer u/s 55A of the I.T. Act, 1961. 5) That the Ld. C.I.T. (Appeals)-1, Kanpur has erred in law and on facts in sustaining the addition made by the Ld. A.O, erroneously on the basis of change of opinion and estimation of Fair Market Value u/s 55A of the I.T. Act, 1961. 6) That the Ld. C.I.T. (Appeals)-1, Kanpur has erred in law and on facts in sustaining the piecemeal assessment made by the Ld. AO, therefore impugned assessment order is unsustainable in law and therefore, liable to be quashed. 7) That the Ld. C.I.T. (Appeals)-1, Kanpur has erred in law and on facts in upholding the impugned assessment order which is void ab-initio, illegal and liable to be quashed. 8)That no notice u/s 148 of the I.T. Act, 1961 for the A.Y.2008-09 was issued and served on ^ the assessee as per law, therefore,....
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....no averment in the reasons recorded that the assessee has failed to disclose fully and truly all material facts necessary for assessment, therefore, assessment order passed is void ab-initio and liable to be quashed. 5. We have heard the rival submissions and perused the material available on record. The facts in the instant case are that original assessment order for impugned assessment year was passed on 31/10/2010 under section 143(3) of the Act. Thereafter Assessing Officer issued notice under section 148(2) of the Act on 27/3/2015 for reopening of assessment by recording following reasons:- "The original assessment u/s 143(3) was completed in the case of Smt. Asha Gupta, 276-B Parwati Bagla Road, Kanpur (PAN - AAWPG5521G) on the income of Rs. 8,23693/- on 31.12.2010 for A.Y. 2008-09 the assessee has claimed Long Term capital Loss of Rs. 1,56,510/-. This Loss has been shown on the sale of property No. B-41, Stutee Building, Karol Bagh, New Delhi. The Long Term Capital Loss have been arrived at by showing the cost of the property as of Rs. 4,00,000/-.The indexed cost have been worked out for the same property at Rs. 5,56,510/-. During the course of assessment, fresh ....
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....ad in law and consequently the order passed in pursuance to such notice is also bad in law. 7. Our above view finds support from the decision of Hon'ble Allahabad High Court in the case of CIT vs. Mirza International Ltd., [ 2015] 229 Taxman 443 wherein it was held that in the absence of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year, Assessing Officer could not initiate re-assessment proceedings after expiry of four years from the end of the relevant assessment year. 8. Our view also finds support from the decision of Hon'ble Gujarat High Court in the case of Cadila Healthcare Ltd. vs. DCIT, 334 ITR 420 wherein it was held that Assessing Officer sought to reopen assessment after a period of four years from the end of relevant assessment year. In the reasons recorded, there was nothing to indicate that assessee had failed to disclose fully and truly all material facts necessary for its assessment for the year under consideration. Hence ingredients of proviso to section 147 were clearly not satisfied. 9. The Hon'ble Bombay High Court in the case of Tao Publishing (P) Ltd. v. Dy....
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.... of section 142 or section 148; or (ii) to disclose fully and truly all material fa ts necessary for his assessment for that assessment year. Condition (a) is admittedly satisfied inasmuch as the original assessment was completed under section 143(3) of the said Act. Condition (b) deals with a special kind of escapement of income chargeable to tax. The escapement must arise out of th failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 This is clearly not the case here because the petitioner did file the return Since there was no failure to make the return, the escapement of income cannot be attributed to such failure. This leaves us with the escapement of income chargeable to tax which arises out of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. If it is also found that the petitioner had disclosed fully and truly all material facts necessary for its assessment, then no acti n under section 147 could have been taken after the four year period indicated above. ....