TaxTMI 
TaxTMI 
2021 (3) TMI 712
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....sing Officer (AO) under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (the Act) concerning AY 2010-11. 2. As per the grounds of appeal, the assessee herein has challenged the action of the CIT(A) in confirming the addition of Rs. 5,17,000/- on account of short term capital gains under-reported having regard to the provisions of Section 50C of the Act. 3. Grounds of appeal raised by the assessee read as under: "(1) That on facts and in law, the learned CIT(A) has grievously erred in holding that the reopening of assessment u/s 147 of the Act is valid. (2) That on facts and evidence on record, it ought to have been held that it is a change of opinion on the same set of facts and circumstances, and hence the re-asses....
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....n or not. 15. Please furnish the copy of sale deed of property sold and explain capital gain. Also explain the details of share investment source thereof and copy of demat account." 6. It was thus submitted that the fact of sale of house property on 21.08.2009 for a consideration of Rs. 8 Lakhs as per sale deed was very much present to the mind of the Assessing Officer and therefore invoking s.147 of the Act for substitution of 'deemed sale consideration' of Rs. 13,17,000/- in place of Rs. 8 Lakhs for the purposes of determination of capital gains with reference to Section 50C of the Act is not justified at all. It was pointed out that the aforesaid act of the AO is merely a 'change of opinion' in an existing fact on a completed....
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....le value of consideration, more so when independent valuation of property has not been carried out. 7. The learned DR for the Revenue, on the other hand, relied upon the observations made by the AO in re-assessment order as well as on the appellate order rendered by the CIT(A). It was further pointed out that certain details towards accrual of capital gains were routinely asked and details as furnished by the assessee were kept on record by the AO in the original proceedings. The apparent sale consideration declared by the assessee in the return of income as per sale deed was summarily accepted without necessary enquiry as incumbent upon him towards an intrinsic value of immovable property having regard to stamp duty valuation. The deeme....
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....lier paras, the case of the assessee was re-opened by issuance of notice under s.148 of the Act alleging under-reporting of capital gains arising to Assessee on sale of immovable property having regard to the provisions of Section 50C of the Act. The reasons recorded under s.148(2) of the Act in respect of AY 2010-11 as duly communicated to the assessee is reproduced hereunder for easy reference: "In this case, the assessment was finalized u/s. 142(3) of the I.T. Act, 1961 for A.Y. 2010-11 on 15/03/2013 determining total income of Rs. 17,32,690/- as against the returned income of Rs. 16,81,894/- after making addition of Rs. 50,798/-. It is observed that the assessee has sold a house of Shahibag, Ahmedabad on 21/08/2009 for....
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.... written somewhere in a bundle of voluminous papers/document placed before the AO, it cannot, in our considered view, automatically mean that the AO has understood the purport of whole gamut of facts and figures. The assessee is under solemn duty to correctly apply the provisions of the Act and in case of a different stand taken on a particular issue, it is further duty of the assessee to properly disclose the relevant facts. The assessee has failed to show that the adoptable value of the property in sale under s.50C of the Act was put to the notice of the AO and reasons were cited for departure therefrom. The difference between the deemed full value of consideration accruing to the assessee as a result of transfer of property and the appar....
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.... doctrine of 'change of opinion' can plausibly come to the rescue of the assessee only when the AO has taken one of the permissible views at the time of original proceedings. The assessment order passed without taking note of the relevant facts and without appreciating law thereon cannot be equated with a valid formation of opinion. In the instant case, it is a case of omission to consider the deemed sale consideration and to form a bonafide opinion on substitution thereof by apparent sale consideration for the purposes of assessments of capital gains in original assessment proceedings. Hence, the assessee cannot claim a vested right arising from a palpably erroneous conclusion owing to non-consideration of significant fact having direct be....