AI Drafter 
TaxTMI 
TaxTMI 
2024 (1) TMI 292
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....Surat through a registered sale deed dated 19.11.2011 as against LTCG of Rs. NIL shown by the assessee in his ROI for the year under appeal. 2. Ld. CIT(A), NFAC has erred in law and on fact to upheld AO's addition of Rs. 33,36,590/- u/s 50C of the Act by ignoring the fact and law that the said section was not applicable in the case of assessee as the agreement to sale was executed on 19.01.2010 as per Jantri Rates prevailing in FY. 2009-10. Further, section 50C of the Act cannot involve for transaction of agriculture land. 3. Ld. CIT(A), NFAC has erred in law and on fact to agree with the views of the AO that deduction u/s 54EC at Rs. 29,60,000/- w.r.t. investment in NHAI Bonds was not allowable as it was allotted on 31.05.2012 i.e. beyond 6 months period from the date of transfer. 4. Ld. CIT(A), NFAC and the AO have erred in law and on fact to interpret and held Release Deed as Purchase Deed of property and accordingly assessed 25% LTCG as STCG on sale of agriculture land situated at Moje Gam-Kanad, Tal-Olpad, Dist. Surat. 5. Additional Ground:: Ld. CIT(A), NFAC has erred in law and on fact to upheld AO's reopening of assessment u/s 147 and issu....
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....I have not been benefited in any way by filling of late appeals. On the contrary, I am carrying out huge burden of tax, interest, Penalty etc. on my shoulders. I humbly submit that the impugned order is high pitched order and is also arbitrary. This affidavit is prepared to file in the office of the Hon'ble ITAT, Surat Bench, Surat in the matter of condonation of delay in filing of my appeal for A.Y. 2012-13. All contents of affidavit are true and correct and binding upon me. I have been explained that execution of false affidavit amount to an offence under the law." 5. The ld Counsel for the assessee also submitted that due to mistake of the tax consultant of the assessee, the delay of thirty-one days has occurred in filing the appeal before this Tribunal, therefore this minor delay may be condoned. 6. On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue opposed the prayer for condonation of delay and stated that assessee has failed to prove sufficient reasons for the delay, hence delay may not be condoned. 7. I have heard both the parties on this preliminary issue and noted that assessee is a senior citizen and retired p....
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....ee and it should be adjudicated first. 12. The facts, necessary for disposal of the appeal, are stated in brief. The assessee has filed his return of income for the assessment year (A.Y.) 2012-13, declaring total income of Rs. 2,34,370/- on 18.06.2012. As per information available with Assessing Officer, the assessee has sold immovable property situated at Moje Gam Kanad, Dist. Olpad with other co-owners through a sale deed executed on 19.11.2011 for Rs. 1,47,20,250/-. The sale deed was registered with Sub- Registrar Olpad, Surat vide Reg. No. OPD/8722/2011. The Stamp Duty Valuation Officer has determined the fair market value of the property at Rs. 2,80,66,610/-. As such there is a difference of Rs. 1,33,46,360/- (Rs. 2,80,66,610 - Rs. 1,47,20,250) between the sale value as per sale deed and the fair market value hence, the provisions of section 50C of the Income Tax Act attracted in the hands of sellers. Therefore, after recording reasons for reopening of the case and obtaining necessary approval from the Pr. Commissioner of Income- Tax-1, Surat, the case was reopened u/s 147 of the Act. The notice u/s 148 of the Act was issued on 19.03.2018 and served upon the assessee. In re....
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....ice "In this connection, you have submitted that the agreement for sale was made on 19.01.2010 and therefore jantri value of FY 2009-10 is applicable and not the jantri value of FY 2011-12 in which document is registered. Your claim has been verified but not found acceptable as there are many discrepancy in agreement for sale dated 19.01.2010 and sale document registered on 19.11.2011. The purchasers, sellers and their share in the property are not same in both documents." As per page no 6 point no 10 of the satakhat, clearly mentioned that sale deed can be executed with seller by first party (purchaser) or any other party which purchaser will decide. So, claim by us are verified and acceptable as per our opinion and the same satakhat details mentioned in the sale deed page no 67 para 2. As per section 50C of Income Tax Act, 1961, jantri value of the property will be taken as on the date of agreement of sale if any consideration will be received by the assessee before agreement of sale. In this case, we have received cash Rs. 20,250/- and cheque Rs. 7,00,000/- before agreement of sale and the same detail was mentioned in satakhat page no 4 point ....
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....e of 4906.75 sq. mtr and has claimed indexed cost of acquisition of Rs. 3,85,176/- on it. However, on perusal of records it was noticed by Assessing Officer that assessee was holding 12.5% of land as inherited property and balance 12.5% was purchased by him, vide registered document No.4537 dated 27.06.2011 for the total investment of Rs. 7,12,510/- (Rs. 5,00,000 + Rs. 2,12,510 stamp duty & other exp). In Para 2 of page 67 of the registered document No.4537 dated 27.06.2011, it is clearly mentioned that the peaceful possession of the seller's part has been handed over to the purchasers on that day i.e. 27.06.2011. Therefore, 12.5% of total land i.e. 50% of land of assessee's share ownership was on 27.06.2011 and therefore half of the land sold of his share is a Short Term Capital Asset. In this connection, assessee contended that as per Section 49(1) of the Act, if any asset is acquired by way of inheritance/gift then the cost of acquisition will be cost of previous owner and date of acquisition will be taken as date of acquisition to previous owner. The contention raised by the assessee was not found acceptable as per law by the Assessing Officer. The assessee has not acqu....
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.... agreement i.e. 19.01.2010 is to be taken and there is no violation of provisions of Section 50C of the Act. However, the Assessing Officer did not accept the contention of the assessee. The Assessing Officer noted that There are many discrepancies in agreement for "Kabjavagar no. satakhat" dated 19.01.2010 and sale document registered on 19.11.2011. The purchasers, sellers and their share in the property are not same in both documents. Therefore, claim of the assessee cannot be accepted. Further, the assessee has not challenged the valuation of the Stamp Duty Valuation Authorities or filed any appeal against the valuation of the property made by the Stamp Duty Authorities. As per provisions of Section 50C of the I.T. Act, 1961 assessee was required to show sales consideration received of Rs. 70,16,653/- in computation of capital gain. However, assessee has shown consideration received of Rs. 36,80,063/- in computation of capital gain. This is clear violation of provisions of section 50C of the I.T. Act. Therefore, differential amount of Rs. 33,36,590/- (Rs. 70,16,653 -Rs. 36,80,063) is added to the total of the assessee under the head "Capital Gains" (Rs. 16,68,295/- as Long Term ....
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....ld have issued notice u/s 143(2) of the Act, however, Assessing Officer has failed to do so. In other words, when the assessee had filed return of income and every information, which are narrated in the reasons recorded by the Assessing Officer, have been disclosed by the assessee, in the return of income, then in that circumstances there is no reason to initiate the reassessment proceedings u/s 147/148 of the Act, in that situation, the Assessing Officer may conduct scrutiny assessment u/s 143(3), by issuing notice u/s 143(2) of the Act. Therefore, ld Counsel argued that the Assessing Officer should have issued a scrutiny notice u/s 143(2) of the Act and perform the full scrutiny instead of reopening the case of the assessee, on same set of facts, which are there in the return of income filed by assessee u/s 139 of the Act, therefore section 147/148 is not a substitute for section 143(2) and 143(3) of scrutiny assessment, wherein the Department has right to conduct the scrutiny u/s 143(3) of the Act, on the basis of the return of income filed by the assessee u/s 139 of the Act. Therefore, Ld. Counsel contended that provision of section 143(2)/143(3) of the Act, cannot be substitut....
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....whether the disputed land was capital asset or not, has not been taken by the lower authorities. The ld. Sr. DR therefore stated that it is a question of fact and the question of fact cannot be raised at the first time before the Tribunal, only a question of law can be raised first time before the Tribunal and not the question of facts. Therefore, ld. Sr. DR for the Revenue contended that whether it is a capital or not capital asset, has not been discussed by the lower authorities, therefore matter may be remitted back to the file of the assessing officer for fresh adjudication. Hence, ld DR stated that the reasons recorded by the Assessing Officer are valid and these are sustainable in the eye of law. 24. I have gone through the facts of the case, the reasons recorded for reopening u/s 147 of the Act, the submission and the various decisions of the Courts including those relied upon by the assessee. The assessee has challenged the reopening on basically on the following grounds that provision of section 143(2)/143(3) of the Act, cannot be substituted with the provision of section 147/148 of the Act, hence reasons recorded by the Assessing Officer on same set of facts, which wer....
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....office within 60 days of this letter." 25. Having gone through the above reasons recorded by the assessing officer, I observed that provisions of section 143(2)/143(3) of the Act, have been substituted by the Income Tax Department with the provisions of section 147/148 of the Act, which is not acceptable in the eye of the law, hence reasons recorded by the Assessing Officer on same set of facts, which were disclosed by the assessee in the return of income filed u/s 139 of the Act, are not a valid reason to reopen the assessment. I also note that in the return of income, the assessee has disclosed the correct and full material facts about the disputed land, therefore on the same set of facts, the reopening of assessment is not allowed. 26. I also note that assessee filed return of income for the assessment year under consideration and it is within the power of the Income Department to issue the scrutiny notice u/s 143(2) of the Act and conduct the scrutiny assessment on the assessee instead of reopening of the assessee`s case u/s 147/148 of the Act. Therefore, reopening of assessment is not valid as the Income Tax Department has power to conduct the scrutiny assessment by issu....
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....about the correctness of the agricultural income disclosed and he wanted to verify the same, he ought to have issued notice under Section 143(2)(ii) within the time limit permissible under the proviso to above sub-section. Having failed to issue the notice under Section 143(2)(ii) with the period of limitation, Section 148 cannot be invoked to get the extended time limit for verification of the correctness of the income returned. In view of the above, we are of the opinion that issue of notice under Section 148 was not valid. The same is quashed. Consequentially, the assessment order passed in pursuance to notice under Section 148 is also quashed restoring the original assessment order. 5.1 The assessee has raised various grounds challenging the addition made in the order of reassessment. Since we have already quashed the order of reassessment, these grounds do not survive for adjudication." 27. On the same set of facts, the reliance can be placed on the judgment of the Hon'ble Madras High Court in the case of CIT vs C. Palaniappan (2006) 284 ITR 257 (Mad) while considering the reopening of assessment u/s 147 r.w.s. 148 of the Act qua the issuance of notice u/s 143(2) t....