AI Drafter 
TaxTMI 
TaxTMI 
2023 (3) TMI 418
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....t March 2022. 2. The reasons for reopening given under notice dated 28th January 2022 are as under: "The original return of income was filed on 31- 03-2016 declaring total income at Rs. 5,55,93,680/- for A.Y. 2015-116. Subsequently, the revised return was filed by the assessee on 14.02.2017 declaring total income of Rs. 5,56,63,130/-. In this case assessment proceedings u/s.143(3) of the act completed assessing total income at Rs. 6,13,89,818/-. In this case on verification of case records, it is seen that the assessee had computed long term capital gains of Rs. 2,25,57,987 by selling share of Silver Pearl Reality Pvt. Ltd. sold to Piramal Reality Pvt. Ltd. on 3.2.2015. A gain of Rs. 57,26,688 on sale of Non- Agricultural land. These capital gains were offset by a loss of Rs. 14.00 crores on sales of shares of Shandilya Properties P Ltd and net loss of Rs. 11.17 crores was claimed as carry forward loss which was allowed in scrutiny assessment. The assessee had purchased the 3675 shares of Shandilya Properties P Lid at Rs. 25,000 each on 17.09.2010 for a total consideration of Rs. 9,75,00,000 and sold the shares to Seaface Buildcon company LLP on 22.1.2....
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....ed and deliberated in the course of the original assessment proceedings by the respondent no.1 who passed an order under Section 143(3) of the Act dated 7th June 2017 for the Assessment Year 2015-16. 4. The learned counsel for the petitioner further submitted that the respondent no.1 has failed to show any tangible material based on which he formed a belief that the set off of the long-term capital loss against the long-term capital gain of the current year could not have been allowed while taxing the long-term capital gain. The learned counsel submitted that the respondent no.1 has also failed to furnish the copy of the approval of the Pr. CIT as provided under Section 151 of the Act before issuing the notice under Section 148. 5. The learned counsel for petitioner relied on the case of M/s. GKN Driveshafts (I) Ltd. V/s. ITO (2003) 259 ITR 19 in support of his contention that the respondent has failed to dispose of the objections filed by the petitioner by his letter dated 8th February 2022 and consequently erred in passing the order under Section 143(3) r.w.s. 147 of the Act. The learned counsel submits that respondent no.1 failed to take into consideration the objections f....
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....statement recorded in the affidavit that no question was asked by the AO in any 142(1) notice which is clearly contrary to the record in as much as the notice dated 1st February 2021 clearly evinces such explanation sought for by the respondent no.1. He also submitted that the averment that no opinion has been expressed by the respondent no.1 under Section 143(3) is also false, as can be evinced by the order. 8. The learned counsel vehemently argued that whilst the respondent no.1 does not refute the receipt of the letter dated 3rd May 2017 but only raised a contention regarding absence of stamp of receipt by the department on the letter. He submitted that since the letter was submitted to the respondent by hand delivery on the date of hearing, consequently, no stamp of receipt was taken from the department. He accordingly submitted that the Petition be made absolute as prayed. 9. Per Contra, Mr. Kumar the learned counsel for the respondent, submitted that the objections filed by the petitioner through its letter dated 8th April 2021 have been duly disposed of by the letter dated 31st January 2022. He submitted that the notice under Section 148 and order under Section 147 r.w....
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....ection 147. Conclusion : 11. We have heard both counsel at length. We find merit in the Writ Petition. 12. In the case of ITO v/s. Lakhmani Mewal Das (1976) 103 ITR 437 (SC) the Supreme Court held that the duty of the assessee does not extend beyond making a true and full disclosure of the primary facts. Once he has done that his duty ends, it is for the Income Tax Officer to draw the correct inference through primary facts. It is not responsibility of the assessee to advise the Income Tax Officer with regard to the inference which he should draw from the primary facts. If the Income Tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment. 13. In the present case the notice u/s 142 (1) of the Act r.w.s 129 for AY 2015 -16 was issued to the petitioner on 1st February 2017 whereby at item 9 page 52 an explanation was sought for the said property. The details were offered by letter dated 3rd May 2017 at item 6 page 60 (which letter is purportedly admitted as not stamped as received by the department). However, the item no. 5 at page 66 r.w....
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....Assessing Officer to initiate a proceeding under section 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of Section 143 or Sub-section (3) of Section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind." 17. The respondent has failed to show why the presumption should not be applied in the present case. Further, it can also be seen from the reasons recorded that there was no new material which had come to the notice of the Assessing Officer and the entire reference in the reasons recorded is only to the material on record. 18. Testing the facts of the present case on the touchstone of the judgments (Supra), it can be seen that there was no new material in the possession of the Assessing Officer. Nothing new had happened, neither was there any change in the applicable law, which would have warranted the reopening of the case. It clearly suggests that in the garb of reopening the assessment, the Assessing Officer was reviewing the earlier order of assessment. In....