TaxTMI 
TaxTMI 
2023 (3) TMI 759
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.... without complying with the statutory requirements of law. 5. For that the reopening was made on the basis of a mere change of opinion 6. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the Assessing Officer erred in completing the assessment u/s.144 7. For that without prejudice to the above, the Commissioner of Income Tax (Appeals) erred in upholding the addition of Rs.13,49,975/- as long term capital gains 8. For that the Commissioner of Income Tax (Appeals) failed to appreciate that Assessing Officer did not allow the indexed cost of acquisition in arriving at the long term capital gains. 9. For that the relinquishment of property was made by the appellant in favour of Smt. R. Umadevi, since the said property was sold to the appellant by a seller who did not hold proper title of the property. 10. For that there would not arise any capital gain on relinquishment of the property since there was no proper title that was in possession of the appellant for the said property. 11. For that the Commissioner of Income Tax (Appeals) ought to have referred the matter to the Valuation Officer u/s.50C....
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....opting provisions of section 50C of the Act, by holding that as per provisions of section 50C(1) of the Act, the value assessed or assessable by the Stamp Valuation Authority is deemed to be full value of consideration received or accruing as a result of transfer of capital asset. Since, guideline value of the property is more than the amount of consideration received for transfer of property, the AO has rightly adopted guideline value and computed capital gains and thus, upheld additions made by the AO. The relevant findings of the CIT(A) are as under: "4. The first issue raised in the grounds of appeal relates to validity of jurisdiction for reopening the assessment u/ s 14 7. During the course of appeal proceedings the AR of the appellant submitted that the taxability of capital gains arising out of the impugned transfer, which is the reason recorded for reopening of the case, has been enquired into by the Assessing Officer during the course of original assessment proceedings. Therefore, the AR argued that there is change of opinion. The AR relied upon the following judgements: (i) Decision of the Hon'ble ITAT, Chennai in the case of Shri KR Jayaram vs. ACI....
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....48 was issued on 31.03.2013 and also enclosed the relevant page of the dispatch register. The Assessing Officer also scanned the copy of the acknowledgement received after despatch wherein admittedly the signature of the addressee is absent. However, the Assessing Officer enclosed a copy of the acknowledgement containing the date seal of the post office wherein the date affixed appears to be 01.04.2013. The AR of the appellant pointed out that the notice was issued in April and therefore, it is barred by the limitation of the Act. 8. In this regard, it is relevant to draw the law laid down by High Court of Punjab and Haryana in the case of V.R.A. Cotton Mills (P) Ltd. vs. Union of India, 33 taxmann.com 675, wherein it was held as under: A perusal of proviso to section 143(2)(ii) contemplates that no notice under said clause shall be served on the assessee after the expiry of six months. The expressions 'serve' and 'issue' are interchangeable, as has been noticed in section 27 of the General Clauses Act, 1887. The date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the pre....
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....Umadevi for which the appellant received a sum of Rs.4,00,000/though the stamp duty has been paid for the value of Rs.17,49,975/- and attracted applicability of Sec.50C of the I.T.Act. Accordingly, the A.O. added the difference in sale consideration and FMV of Rs.13,49,975/- under the head "Capital Gain". 11. The appellant. stated in the grounds of appeal during the course of appeal proceedings that the A.O. ought to have referred the matter to the Valuation Officer u/ s 50C(2). 12. The observation of the AO and the submissions of the appellant have been carefully considered. The issue is whether the actual consideration received as a result of transfer or the value assessed by the stamp valuation authority must be taken as deemed consideration. The AO adopted Rs.17 ,49, 975/- in place of Rs.4,00,000/- in terms of Section 50C of the Act. Under Section S0C(l) of the Act, the value assessed or assessable by the stamp valuation authority is deemed to be the full value of consideration received or accrued as a result of transfer of capital asset. Under subsection (2) of Section SOC, where the assessee claims before any AO that the value adopted or assessed [or assessa....
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.... the Act, ignoring provisions of section 50C(2) of the Act, without referring the matter to the DVO to determine the fair market value of the property. Thus, the matter may be set aside to the file of the Assessing Officer for fresh verification. 6. The Ld. DR, on the other hand referring to the assessment order and dispatch register of Assessing Officer submitted that notice issued u/s. 148 of the Act, dated 31.03.2013 has been dispatched on the very same day, which is evident from the dispatch register. Further, as per the acknowledgment of Postal Department, the notice has been served on the assessee within the time allowed under the Act, which is evident from the fact that although there is no signature and date of receipt in the acknowledgment for serving 148 notice, but subsequent notice issued u/s. 142(1) of the Act, has been received by the assessee and his wife. Therefore, it can be safely concluded that notice u/s. 148 of the Act, has been served on the assessee. He further submitted that, there is fresh tangible material with the AO to form a reasonable belief of escapement of income and thus, it is not a case of change of opinion. On the issue of satisfaction, he sub....