2018 (8) TMI 657 - AT - Income Tax

Reopening of assessment u/s 147 r.w.s 148 - reason to believe - Capital gains - Sale of land - Agriculture land or not - capital assets - land was purchased and sold within a short period of 10 months time - Held that - Merely because addition has been made in hands of co-owner, no presumption could be drawn that income has escaped assessment in the hands of assessee, without there being independent reasons to believe , based upon cogent materials. Secondly, Inspector s report based upon which assessment was completed in the hands of Smt.Chaya Sinha, specifically states that alleged agricultural land is situated 11 km away from Thasil Palwal, and therefore 2nd reason for reopening of assessment is again based upon a contrary view. Intention to use a particular piece of land for non agricultural purposes cannot by itself alter character of the land in question. Authorities below has not been able to dispute that during financial year relevant to assessment year under consideration, as per revenue records land in question has been shown as KHUD KHAST and without any basis or material evidence rejects these Government records by holding it to be an mechanical entry. No additions - reassessment is not valid - Decided in favor of assessee.

Summary

Issues:
1. Validity of reopening assessment under section 147 of the Income Tax Act, 1961.
2. Addition of short term capital gain on the sale of agricultural land.

Issue 1: Validity of Reopening Assessment:
The appellant challenged the reopening of assessment under section 147 of the Income Tax Act. The appellant's representative argued that the reassessment notice lacked a valid foundation as it was based solely on the return filed by the appellant. It was contended that there was no independent material supporting the reassessment notice. The appellant relied on a previous Tribunal decision regarding a co-owner's case where the Tribunal found the reopening to be unjustified due to the absence of a genuine "reason to believe" for income escapement. The Senior Departmental Representative, however, supported the reopening based on information gathered during the assessment of the co-owner. The Tribunal noted that the assessing officer had reopened the assessment based on the denial of exemption in the co-owner's case and the location of the land in an industrial area. The Tribunal found that these reasons were insufficient to justify the reopening, emphasizing the lack of independent "reasons to believe" and the contradictory nature of the evidence regarding the land's location.

Issue 2: Addition of Short Term Capital Gain:
The appellant contested the addition of short term capital gain on the sale of agricultural land, arguing that the land qualified as agricultural land under section 2(14) of the Act. However, since the Tribunal had already ruled in favor of the appellant on the first issue by quashing the reopening of assessment, the second issue became moot. The Tribunal allowed the appeal on legal grounds, as the reopening of assessment was deemed unjustified, rendering the addition of short term capital gain irrelevant.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the appeal on legal grounds due to the lack of valid reasons for reopening the assessment. The addition of short term capital gain was deemed irrelevant following the decision on the first issue.