2022 (1) TMI 1101 - AT - Income Tax

Reopening of assessment u/s 147 - notice u/s. 148 issued by the non-jurisdictional assessing officer - Computation of long-term capital gain -Co-ownership in property sold - whether assessee should get deduction of cost of acquisition considering 1/77th shares ld. AO's version or 1/7th Assessee's version . HELD THAT - The assessee has made a change request on 16 September 2015 in the permanent account number AEDPT9529A wherein at serial number seven of the change in PAN data application he has mentioned the above address. To support that application assessee submitted as a proof of address AADHAR card. The notice issued u/s. 148 of the income tax act was at the same address, which was changed by the assessee, and stating the same permanent account number. Therefore, it is very strange that when the notice u/s. 147 of the income tax act was issued on 31st of March 2016, learned AO has mentioned correct address, which was changed by the assessee on 15 September 2015. Therefore from the addressee it was apparent that the learned assessing officer who issuing the notice u/s. 147 of the act does not have jurisdiction over that assessee. Despite this, the learned ITO ward 2 Gandhidham issued the notice. The assessee also put to the kind attention of the ITO Ward 2 Gandhidham vide letter dated 12 September 2016 that the jurisdiction of the assessee is at Mumbai and therefore his case may be transferred to the respective officer. Consequent to the request of the assessee on 17/11/2016 The Income Tax Officer 28(3)(4) Navi Mumbai issued notice u/s. 142(1) read with Section 129 of The Income Tax Act. Thus, it is clear that the ITO ward 2 Gandhidham did not have jurisdiction to issue notice u/s. 148 of the Act. Hence looking to the facts and circumstances of the case it is apparent that the notice u/s. 148 of the act is issued by the non-jurisdictional assessing officer and therefore not sustainable. More so for the reason that in the reasons for reopening of the assessment, the learned assessing officer has also mentioned the changed address of the assessee and despite this fact he did not apply his mind that whether he is having a jurisdiction over that assessee or not. We also failed to understand that how the approval u/s. 151 of the income tax act was given by the approving authority without verifying whether the learned assessing officer who issued the notice u/s. 148 of the income tax act has jurisdiction over the assessee to whom notices issued or not. With respect to the objection of the learned departmental representative that the ground of the appeal against the reopening of the assessment has been dismissed by the learned CIT - A and therefore the assessee now once again cannot agitate the same, is not acceptable in view of the specific cross objection filed by the assessee where the issue has been decided against the assessee by the learned CIT - A. Cross objections are also an appeal according to the provisions of Section 253(4) of the act. As the notice u/s. 148 of the income tax act is issued by the non jurisdictional officer same is not sustainable in law and therefore same deserves to be quashed and hence so quashed. Accordingly the cross objection of assessee is allowed. Computation of long-term capital gain - We find that the CIT - A has correctly held that the learned assessing officer has grossly failed in determining the sale of the appellant for the next cost of acquisition as on 1/4/1981 at 1/77 share of the appellant in 41 percent undivided right titles share and interest in the said property because of the reason that for the purpose of considering the sale consideration the share of the assessee is considered 1/7 and therefore the cost of acquisition should also be granted to the assessee in the same proportion. The view taken by the learned assessing officer of considering the sale consideration of the assessee considering assessee has 1/7 co-owner and granting the cost of acquisition to the assessee considering that assessee is 1/77th co-owner of the impugned property is completely devoid of any logic and contrary to the facts recorded in the assessment order itself. In view of this we do not find any infirmity in the order of the learned CIT - A in granting the cost of acquisition as deduction to the assessee considering 1/7th share in the property - Decided against revenue.

Summary

Issues Involved:
1. Validity of reopening the assessment by a non-jurisdictional officer.
2. Computation of the Indexed Cost of Acquisition for determining capital gains.
3. Allowance of carry forward of capital loss.

Detailed Analysis:

1. Validity of Reopening the Assessment by a Non-Jurisdictional Officer:
The assessee argued that the reopening of the assessment was invalid as the notice under Section 148 was issued by the Income Tax Officer, Gandhidham, who did not have jurisdiction over the assessee, whose jurisdiction lay in Mumbai. The assessee provided evidence such as the AADHAR card, passport, and PAN application showing the address in Navi Mumbai. The Tribunal noted that the notice was indeed issued by a non-jurisdictional officer and cited relevant case laws supporting the requirement that the jurisdictional officer must issue such notices. Consequently, the Tribunal held that the notice under Section 148 was invalid, and the reopening of the assessment was void ab initio.

2. Computation of the Indexed Cost of Acquisition:
The primary dispute was whether the assessee's share in the property should be considered 1/7th or 1/77th for computing the Indexed Cost of Acquisition. The assessee argued that the share should be 1/7th as the property was inherited from an ancestor who had seven successors. The Assessing Officer (AO) had computed the share as 1/77th based on the consent terms in a civil suit. The Tribunal found that the AO's computation was incorrect as it was devoid of logic and contrary to the facts recorded in the assessment order. The Tribunal upheld the CIT(A)'s direction to consider the assessee's share as 1/7th, aligning the cost of acquisition with the sale consideration.

3. Allowance of Carry Forward of Capital Loss:
The CIT(A) had directed the AO to re-compute the Indexed Cost of Acquisition and allow the carry forward of the capital loss so computed. The AO contested this direction. However, the Tribunal found no infirmity in the CIT(A)'s order, as the correct computation of the Indexed Cost of Acquisition was essential for determining the accurate capital loss. The Tribunal dismissed the AO's appeal and upheld the CIT(A)'s direction to allow the carry forward of the capital loss.

Conclusion:
The Tribunal quashed the notice issued under Section 148 by the non-jurisdictional officer, thereby invalidating the reopening of the assessment. It also upheld the CIT(A)'s order directing the AO to compute the Indexed Cost of Acquisition considering the assessee's share as 1/7th and allowing the carry forward of the capital loss. The appeal filed by the AO was dismissed, and the cross-objection filed by the assessee was allowed.