TaxTMI 
TaxTMI 
2023 (3) TMI 1041
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....is incorrect as no immovable property of the value of Rs. 2,65,45,504/- has been sold by the appellant during the relevant assessment year. 2. On the facts and in the circumstances of the case and in law the appellant submits that neither the Assessing Officer nor the CIT granting approval has applied their mind to the reasons of reopening since the assessment has been reopened on the ground that the appellant has not offered any capital gains on the transaction of sale of property with sale consideration of Rs. 2,65,45,504/- and the assessment has been completed without making any addition based in the ground of reopening but by reworking the declared capital gain and disallowing the expenses as claimed in the return. 3. Without Prejudice to the above On the facts and in the circumstances of the case and in law, the DRP was not justified in rejecting the Objections filed by the appelant holding the same to be time barred and refusing to condone the delay keeping in mind that the appellant had submitted the Objections to the draft order in Form no. 35A to the Assessing Officer online within time but the delay was on account of a mistake on the part of the appellant's repr....
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....ing to Rs. 25,60,000/-. 10. On the facts and in the circumstances of the case and in law, the Assessing Officer was not justified in assessing the long term capital gain in the hands of the appellant at Rs. 12,15,97,140/- as against the returned long term capital gain of Rs. 9,50,51,636/-. 11. On the facts and in the circumstances of the case and in law, the Assessing Officer erred in raising a demand of Rs. 1,24,42,549/- ignoring the fact that the same should be provisional as the matter of determination of the fair market value of the flat as on 1st April 1981 is with the DVO and his report is awaited. 12. The appellant craves leave to add to alter or vary the grounds of appeal at or before the hearing of the appeal." 3. As the assessment in the present case was reopened by the Assessing Officer, therefore, the validity of assumption of jurisdictional under section 147 of the Act is the foundation aspect of this matter. Accordingly, we deem it appropriate to deal with the jurisdictional aspect first and if necessary thereafter, to deal with the addition made by the Assessing Officer on merits. 4. The brief facts of the case pertaining to the jurisdictional issue are: The ....
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....term capital gains of Rs.2,65,20,504. Thus, it was submitted that the reasons for reopening are very different from the actual assessment made by the Assessing Officer. 6. On the contrary, the learned Departmental Representative ("learned DR") vehemently relied upon the orders passed by the lower authorities and submitted that the reassessment was made on the basis of information received that property was sold by the assessee, though the amount of sale consideration and the capital gains may be different. 7. We have considered the rival submissions and perused the material available on record. In the present case, it is undisputed that for the year under consideration, the assessee has offered capital gains from the sale of property with sale consideration amounting to Rs.12,80,00,000. Accordingly, the assessee declared a total income of Rs.9,69,65,080, which comprise taxable long-term capital gains of Rs.9,50,51,636, and income from other sources of Rs.19,23,445. The Assessing Officer on the basis of information received from DIT (I&CI) vide letter dated 13/07/2018, that the assessee has sold property amounting to Rs.2,65,45,504, initiated proceedings under section 147 and issu....
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....as escaped assessment in the case of the assessee. 1. Applicability of the provisions of section 147/151 to the facts of the case: Therefore, I have reason to believe that the taxability on capital gains remained to be verified which escaped assessment within the meaning of Explanation 2(b) of Sec 147 of the Income Tax Act. Therefore, it is a fit case for issue of notice u/s 148 r.w.s 147 of the I.T. Act for the A.Y-2013-14. Accordingly, approval of u/s. 151(1) of the I.T. Act, 1961 is required in the case, for issuing notice under section 148 of the IT. Act, 1961." 8. From the perusal of aforesaid reasons, it is evident that the Assessing Officer was well aware and accepted that the assessee has offered capital gains from the sale of property with sale consideration amounting to Rs.12,80,00,000. However, the Assessing Officer sought to tax the income from capital gains not offered for tax on the transaction of sale of property with sale consideration of Rs.2,65,45,504. From the paragraphs in the reasons with the headings "Enquiries made by the AO as a sequel to information collected/received" and "Findings of the AO", it is evident beyond doubt that the Assessing Officer consid....
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....herefore, the income which was initially alleged to have escaped assessment was not ultimately added by the Assessing Officer while passing the assessment order and rather the transaction already disclosed by the assessee was re-examined and the capital gains computed by the assessee was recalculated in the assessment order without issuing a fresh notice under section 148 of the Act. In this regard, it is relevant to note the following observations of the Hon'ble jurisdictional High Court in CIT vs Jet Airways India Ltd [2011] 321 ITR 236 (Bom.): "16. ........Section 147 has this effect that the Assessing Officer has to assess or reassess the income ("such income") which escaped assessment and which was the basis of the formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which, comes to his notice during the course of the proceedings. However, if after issuing a notice under section 148, he accepted the contention of the assessee and holds that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to....