TaxTMI 
TaxTMI 
2021 (7) TMI 71
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the very same transaction, scrutiny proceeding under Section 143(3) of the Act was undertaken in case of the petitioner. In pursuance to the same the petitioner appeared and filed a detailed reply along with relevant documents. The matter was discussed in detail with the Assessing Officer and opportunity of personal hearing was granted to the petitioner. Accordingly, an assessment order recording all relevant facts and figures was passed by the respondents. It is putforth that the respondents have sought to reopen the same transaction 3. The learned counsel for the petitioner submits that no any tangible material came to the notice of the respondents and, therefore, there was no failure on the part of the petitioner to disclose any information during course of the original assessment proceedings. It is further submitted that approval for reassessment has been given merely in a mechanical manner. The re-assessment proceeding in the case of the petitioner is clearly a case of "change of opinion" and review of the earlier assessment proceeding and, therefore, the same is impermissible. Learned counsel for the petitioner further submits that law pertaining to reassessment proceed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of reassessment of income under Section 148 of the Act was issued to the petitioner by the respondents. 7. The petitioner filed objections against the reassessment proceedings which were disposed of by the impugned order in the instant petition. According to the petitioner the objections filed by the petitioner have been disposed of by the respondents in a mechanical manner and, therefore, the reassessment proceeding in the present case is illegal. Learned counsel for the petitioner strenuously urged that the reassessment proceedings in the present case are of a clear case of "change of opinion" and the respondents desired to review the assessment order in the garb of reassessment, which is impermissible. It is argued with vehemence that the reassessment proceedings in this case are bad in law and there is no failure on the part of the petitioner to truthfully disclose all the material facts. The reassessment proceedings in this case are injudicious, as the same have been initiated on the realm of change of opinion, borrowed satisfaction and based on audit objections. It is argued that the reassessment proceeding initiated by the respondent is in absence of any fresh tangible ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by the Assessing Officer during the course of the original assessment proceedings. It is argued that Section 50C of the Act is not applicable to the present transaction. It is undisputed that the provisions of Section 50C are not applicable when the asset is not a capital asset. In the present case the impugned land sold is a rural agricultural land and not an urban agricultural land. 11. It is pleaded that merely because the petitioner has shown the transaction under the capital gain, does not mean that the petitioner can be penalised. It is trite law that if an any assessee, under a mistake, misconception or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. Reliance in this regard has been placed on the decision rendered in the case of Balmukund Charaya (supra). 12. Combating the aforesaid submissions the learned counsel for the respondents submitted that the case of the petitioner is governed by substantive provision of Section 147 of the Act, where all that is required is that the Assessing Officer should prima facie have some material on the basis of whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of Section 50C of the Act and the LTCG disclosed by the petitioner at a lesser amount necessitated initiation of proceedings under Sections 147 and 148 of the Act. 15. We have heard the learned counsel for the parties and bestowed our anxious consideration on the arguments advanced on behalf of the parties. We do not perceive any merit in the writ petition. The respondents have recorded cogent and plausible reasons while rejecting the objections raised by the petitioner against initiation of the assessment proceedings under sections 147 and 148 of the Act for the Assessment Year 2014-15. They have given detailed reasons for initiation of the reassessment proceedings against the petitioner, which we think apt to reproduce : "1. In paragraphs 1 to 3 of your letter, you have stated only the facts and the same do not require any comments. 2. In paragraph No.4, it has been stated that since the impugned land was agricultural in nature, the same did not fall within the ambit of section 2(14)(iii) of the Act and was thus not liable to capital gain and further even the AO in the assessment order has accepted the impugned land as agricultural. This objection is withou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 25-02-2021, it has been contended that there was no failure on the part of the assessed to fully and truly disclose all the material facts. With regard to this objection, it may be informed that in the ITR you had shown LTCG at Rs. 3,40,128/- after taking into consideration the apparent consideration of the impugned land at Rs. 1,20,00,000/- while the same should have been worked out by taking into consideration the market value of Rs. 1,47,97,000/- as per the Stamp Valuation Authority in view the provisions of section 50C of the Act. Thus, there was apparent failure on your part to disclose fully and truly all the material facts in the ITR as well as during the course of original assessment proceedings. Accordingly, this objection is also not acceptable. Further the reliance placed by you in the judgment of various Hon'ble Courts have no bearing in your case. 6. In para No.8, you have contended that there was no application of mind by the AO while recording the reasons for reopening. This objection also has no force because while recording the reasons under section 147 of the Act, complete facts were mentioned and the escapement of LTCG was worked out at Rs. 42,03,436/- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e chargeable to tax escaping assessment. 17. In the case in hand, a bare reading of the Questionnaire issued for the Assessment Year 2014-15 before completion of the assessment order under Section 143(3) of the Act on the touchstone of the reasons to believe mentioned at 119 of the petition as well as order dated 24-5-2021 by which objection of the petitioner has been disposed of, would show that the reassessment proceeding initiated is not mere "change of opinion", but based upon additional facts which were not at all taken into consideration by the assessing authority. Initiation of the reassessment proceedings was started by issuance of notice under Section 148 of the Act. Those proceedings are yet to be concluded, as no assessment order has been passed. Yet in this case, only objection filed by the petitioner has been decided. The petitioner will have effective and efficacious remedy against the said assessment order. Reassessment proceeding has been initiated on the basis of material having direct bearing over the case of the assessee which is based on the "reason to believe" which was recorded by the assessing authority. Further, there is no merit in the contention of t....