TaxTMI 
TaxTMI 
2019 (9) TMI 1227
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....sessee is an individual and derives income from Long Term Capital Gains ('LTCG') and launch hiring. 3. The Assessing Officer ('AO') recorded reasons of re-opening as follows: "Date: 30.01.2015 It was seen that the assessee has paid self-assessment tax for Rs. 6,03,230/- on 07/11/2014 in the A.Y.-2014-15. Show cause notice u/s. 210 was served upon the assessee to pay the advance tax for the A.Y.-2015-16 in a regular manner. The assessee replied that there was income Long Term Capital Gain in A.Y.-2013-14 and the self-assessment tax was paid for the A.Y.-2013-14 though by mistake it was deposited for A.Y.-2014-15 and required for necessary correction. It is seen that the assessee has not filed any return of income for A.Y.-2013-14. ....
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....mstances of the case, the Ld. CIT(A) ought to have quashed the re-assessment order framed u/s 147 r.w. 143(3) dated 31.03.2016 holding the re-assessment proceedings to be invalid in law. 2. For that the Ld. CIT(A) ought to have accepted the sale consideration value of Rs. 20 lacs as per the sale deed in place of the erroneous fair market value of Rs. 30,24,819/- determined by the DVO in respect of the property at Diamond harbour Road (Madhabpur). 3. For that the Ld. CIT(A) ought to have accepted the FMV of the assessee's share of property located at Chowbga (West) as on 01.04.1981 at Rs. 12,70,020/- in place of Rs. 14,825/- erroneously determined by the A.O. 4. (a) For that on the facts and in the circumstances of the case, the Ld.....
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....ter that the assessee could file his return of income. He relied on the following case laws for the proposition of law that, an assessment cannot be re-opened u/s 147 of the Act, before the expiry of due date of filing of return of income. 1) Income Tax Appellate Tribunal's ('ITAT') SMC(B) Bench, Kolkata in the case of Sh. Jagmohan Sharma vs. Income-tax Officer, Wd-3(1), Asansol in ITA No. 1384/Kol/2013 dated 05.09.2014. 2) Lucknow 'B' Bench of the ITAT in the case of UP Housing & Development Board vs. ACIT in ITA No. 229/LKW/2009 dated 05.09.2014. 7. He prayed that such assessment framed by issue of the notice u/s 147 of the Act should be quashed as bad in law. 8. On merits he submitted that the matter of valuation, for the purpose of ....
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....to be arrived at. 10. The Departmental Representative ('DR') on the other hand submitted that the reopening of assessment was valid, as the return of income was not filed even till the date permitted u/s 139(4) of the Act for filing of belated return of income and was filed only after a notice u/s 142(1) of the Act was issued. He submitted that the dates and events show that the assessee had no intention of filing his return of income on or before 31.03.2015. He relied on the order of the ld. CIT(A) and submitted that the same be upheld. 11. On the issue of computation of LTCG, he submitted that the ld. CIT(A) has rightly directed the AO to adopt the DVO's valuation for the two properties and to adopt the SDO value for the third propert....
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....cts in the case are different and hence this case does not apply. In the case of UP Housing & Development Board (supra) Lucknow Bench of ITAT was dealing with the case where the return of income was filed u/s 139(4) of the Act on 31.03.2006. The Tribunal at pages-7 and 8 held as follows: "In our considered opinion, if the assessee does not file any return of income on or before the due date as prescribed u/s 139(1) of the Act, then the Assessing Officer may issue notice to the assessee for filing return of income u/s 142(1) of the Act. For the sake of ready reference, we reproduce the provisions of section 142(1)(i) as under: "142(1) (i) where such person has not made a return within the time allowed under subsection (1) of secti....
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....a consequence, the assessment framed u/s 143(3)/148 has no legs to stand and therefore, the same is quashed." In the case on hand the assessee has not filed his return of income u/s 139(4) of the Act and whereas in the case of UP Housing & Development Board the return of income was filed on 30.03.2006. There was no intention to file the return of income before 31.03.2010. The return of income was filed only on 26.11.2015. Thus we cannot apply the ratio of this order to the case on hand. 15. In view of the above we hold that re-opening of assessment is valid. Hence this ground of the assessee is dismissed. 16. Coming to the issue of merits, there were a total of three properties which were sold. As regards the property located at Mouza....