2013 (12) TMI 1112 - AT - Income Tax

Validity of assessment u/s 147 Held that - As per AO, certain income has escaped assessment by reason of incorrect allowing of deduction under section 54F of the Act for the reason that the assessee had not acquired the dominion over the new residential property within the stipulated two years - The said issue was a subject matter of consideration in the block assessment framed under section 158BC read with section 158BD - The same point cannot be taken up by the Assessing Officer to hold that any income has escaped assessment within the meaning of section 147/148 when the block assessment u/s 158BC was not uphold by CIT(A) - Following Smt. Mira Ananta Naik v. Dy. CIT 2008 (8) TMI 800 - BOMBAY HIGH COURT - There is much substance in the contentions of Shri Nadkarni that the search having resulted in block assessment - In these proceedings the income tax assessed and taxed after it was brought to the notice of the Assessing Officer. Merely because the block assessment was not upheld by the authorities under the Income-tax Act, it cannot be reason enough in this case to invoke section 147 of the same - The reasons recorded by the Assessing Officer, reproduced in the earlier part of this order do not show any reasonable basis for the Assessing Officer to conclude that there was any escapement of income - The initiation of proceedings by issuance of notice under section 147/ 148 in the present case is flawed and void ab initio Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of initiation of proceedings under Section 147/148 of the Income-tax Act.
2. Determination of long-term capital gain without allowing the benefit of deduction under Section 54F.

Issue-wise Detailed Analysis:

1. Validity of Initiation of Proceedings under Section 147/148:

The appellant, a Hindu Undivided Family (HUF), contested the initiation of proceedings under Sections 147/148 by the Assessing Officer (AO) as unjustified, arguing that the assessment was invalid due to lack of jurisdiction. The appellant's counsel argued that the AO could not initiate reassessment proceedings under Section 147 based on the same material used for a block assessment under Section 158BC/158BD, especially after the block assessment was quashed in appellate proceedings.

The Tribunal noted that the appellant had declared long-term capital gain on the sale of land and claimed a deduction under Section 54F, which was partially allowed by the AO in the original assessment under Section 143(3). This partial allowance was affirmed by the Commissioner of Income-tax (Appeals) (CIT(A)). However, following a search action under Section 132(1), the AO issued a notice under Section 158BD, raising the same issue of the appellant not acquiring dominion over the new residential unit within the stipulated period.

The Tribunal referred to various judicial pronouncements, including the Gujarat High Court's decision in Cargo Clearing Agency (Gujarat) and the Kerala High Court's decision in CIT v. C. Sivanandan, which held that once a block assessment is made, the AO cannot issue a notice under Section 148 based on the same material. The Tribunal concluded that the initiation of proceedings under Section 147 was invalid as it was based on the same material considered in the block assessment, which had already been quashed.

2. Determination of Long-term Capital Gain without Allowing Deduction under Section 54F:

The appellant declared a net long-term capital gain of Rs. 28,49,780, including a claim of deduction under Section 54F amounting to Rs. 2,04,50,220. The AO, in the reassessment proceedings, disallowed the deduction under Section 54F, arguing that the appellant did not acquire dominion over the new residential property within the stipulated period.

The Tribunal noted that the issue of deduction under Section 54F was already considered in the original assessment under Section 143(3) and the block assessment under Section 158BD. The CIT(A) had earlier held that the appellant acquired dominion over the new residential unit within the stipulated period, and this finding was not contested by the Revenue.

Given that the initiation of proceedings under Section 147 was found to be invalid, the Tribunal held that the subsequent ground relating to the merits of the dispute was rendered academic and did not require adjudication.

Conclusion:

The Tribunal concluded that the initiation of proceedings under Section 147/148 was invalid and void ab initio. Consequently, the impugned assessment was held to be invalid, and the appeals of the assessee were allowed. The order was pronounced in the open court on February 28, 2013.