2019 (5) TMI 177 - AT - Income Tax

Validity of reopening of assessment u/s 147 - wrong facts in reasons recorded - absence of proper service of notice u/s 148 - Assessment of capital gains in the hands of assessee assuming the land in question as capital asset and deduction u/s. 54F - HELD THAT - As in the case of one of co-owners of the same land which was sold, namely, Smt. Savita D/o Late Mool Chand reasons and the notice u/s 148 of the Act are ante dated or at the lease that they are not properly recorded. In this set of facts and circumstances, it is difficult to say that there was proper issuance or service of notice u/s 148 and no reliance could be made on the reasons recorded in this matter. We, therefore, hold that there is no proper issuance and service of notice u/s 148 in this matter and consequently, the assessment order is liable to be quashed. Appeal of the assessee is allowed accordingly

Issues:
1. Validity of notice issued under section 148
2. Assessment of capital gains assuming the land as a capital asset
3. Deduction under section 54F of the IT Act

Issue 1: Validity of notice issued under section 148
The appellant challenged the validity of the notice issued under section 148, arguing that the assessment proceedings should be quashed ab initio due to improper service of notice. The appellant contended that the notice was issued without proper evidence of service and that the assessment proceedings were illegal and arbitrary. The appellant highlighted discrepancies in the reasons recorded for reopening the assessment, pointing out that the notice was ante-dated or not properly recorded. The appellant relied on a Co-ordinate Bench decision in a similar case to support their argument. The Tribunal found merit in the appellant's contentions and held that there was no proper issuance or service of notice under section 148, leading to the quashing of the assessment order.

Issue 2: Assessment of capital gains assuming the land as a capital asset
The appellant contested the assumption that the land in question was a capital asset, citing discrepancies in the notification issued by the CBDT and the official Gazette notification produced during appellate proceedings. The appellant argued that the property sold should not be treated as a capital asset due to the mistake in the name of the place mentioned in the notification. The Tribunal noted the appellant's arguments and found that the core issue of whether the land qualified as a capital asset was crucial. The Tribunal referred to the Co-ordinate Bench decision in a related case and concluded that since the assessment was invalid, there was no need to address the merits of treating the property as a capital asset.

Issue 3: Deduction under section 54F of the IT Act
The appellant contested the rejection of their claim under section 54F of the IT Act by the CIT (A). The appellant sought exemption under section 54F during appellate proceedings. The Tribunal did not delve into this issue in detail as the assessment was deemed invalid due to the improper issuance of the notice under section 148. Therefore, the Tribunal did not address the grounds related to the deduction under section 54F.

In conclusion, the Tribunal allowed the appeal of the assessee based on the invalidity of the notice issued under section 148, leading to the quashing of the assessment order. The Tribunal did not address the other grounds of appeal concerning the assessment of capital gains and the deduction under section 54F due to the finding of the notice's improper issuance.

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