2009 (2) TMI 390

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..... the statute will not justify reopening of assessment under section 147. This order is confirmed by the Tribunal. Held that-(i) that the property transferred was not agricultural land thus claiming exemption on the ground that the property taken over was agricultural land and hence there was no liability for tax on capital gains.(ii) That section 147 was not controlled by the amendment that was applicable in the case. Since the assessee did not concede the income on capital gain either under the unamended provision or under the amended provision the recourse open to the Department was to bring to tax income escaping assessment u/s 147 which was not time barred to follow the law in force as on the date of initiation of proceeding. - 104 .....

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..... he assessment for the assessment year 1989-90. The assessee filed appeal against the assessment which was allowed by the commissioner of Income-tax (Appeals) holding that the amendment of the statute will not justify reopening of assessment under section 147. This order is confirmed by the Tribunal in the second appeal filed by the Revenue against which this appeal is filed under section 260A of the Income Tax Act. 2. We have heard senior counsel appearing for the Revenue and Shri P. Balakrishnan appearing for the respondent. 3. The contention of the appellant is that since there is no challenge against the assessment completed under section 147, the Commissioner of Income-tax (Appeals) as well as the Tribunal went wrong in holding .....

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..... ains is first assessable for the year 1989-90. The assessee has no case that even under the unamended provision the proceedings initiated and completed under section 147 is time barred. In other words, even if there was no amendment income by way of capital gain could have assessed under section 147 for the assessment year 1988-89. The counsel for the assessee has relied on the decision of the Gujarat High Court in Denish Industries Ltd. v. ITO [2004] 271 ITR 340 and that of the Punjab and Haryana High Court in Mahavir Spinning Mills Ltd. v. CIT [2004] 270 ITR 290 and contended that section 147 proceedings cannot be initiated based on a retrospective amendment. We are unable to uphold this argument because section 147 is not control .....

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