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2019 (5) TMI 21 - AT - Income TaxReopening of assessment - Validity of notice issued u/s. 148 - wrong facts in reasons - No proper issuance or service of notice - assessment of capital gains in the hands of assessee assuming the land in question as capital asset - Challenge is also made with respect to deduction u/s. 54F - HELD THAT - Co-ordinate Bench in the case of one of co-owners of the same land which was sold, namely, Smt. Savita D/o Late Mool Chand held that there is a reference to the substantive assessment that was in the hands of Mool Chand, HUF and it is only consequent thereto the protective assessment was said to be made in the hands of the assessee. When the fact does not admit of any doubt that the substantive assessment in the hands of Mool Chand, HUF on 28.3.13, it would not have been possible for the AO to record the reasons in this case on 26.3.13. It suggests that the reasons and the notice u/s 148 of the Act are ante dated or at the lease that they are not properly recorded. No proper issuance or service of notice u/s 148 of the Act 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. - Decided in favour of assessee.
Issues:
1. Validity of notice issued u/s. 148 2. Assessment of capital gains 3. Deduction u/s. 54F of the IT Act Issue 1: Validity of notice issued u/s. 148 The appeal challenged the validity of the notice issued u/s. 148 for the assessment year 2006-07. The appellant argued that the ld. CIT(A) erred in law by confirming the assessment on a deceased person and failed to consider the report of the server on the notice u/s 148. The appellant contended that there was no evidence of proper service of notice, and the initiation of assessment proceedings should be quashed. The Co-ordinate Bench's decision in a similar case supported the appellant's argument, highlighting discrepancies in the issuance and recording of reasons for the notice u/s 148. The discrepancies led to the conclusion that there was no proper issuance or service of notice u/s 148, resulting in the quashing of the assessment order. Issue 2: Assessment of capital gains The appeal also contested the assessment of capital gains, disputing the classification of the land in question as a capital asset. The appellant argued that the land should not be considered a capital asset based on the Gazette notification produced during appellate proceedings, which differed in location from the one cited by the authorities. The appellant emphasized the mistake in the place name mentioned in the notification, asserting that the property should not be treated as a capital asset. The Tribunal found merit in the appellant's argument, considering the discrepancies in the notifications and the official Gazette, leading to the conclusion that the property may not be held as a capital asset. Issue 3: Deduction u/s 54F of the IT Act The appellant contested the rejection of the claim u/s 54F of the IT Act. The appellant sought allowance of the claim made under this section. However, due to the findings on the first issue regarding the validity of the notice u/s 148 and the subsequent quashing of the assessment order, the Tribunal did not delve into the merits of this issue. The appeal was allowed based on the legal aspect of the case, rendering the assessment invalid and obviating the need to address other grounds of appeal. In conclusion, the Tribunal allowed the appeal, emphasizing the lack of proper issuance and service of notice u/s 148, discrepancies in the classification of the property as a capital asset, and the subsequent quashing of the assessment order based on legal grounds. The decision highlighted the importance of procedural compliance and accurate record-keeping in assessment proceedings.
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