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TMI Blog2012 (7) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration for availing benefit u/s 54F should be in the name of the assessee is a debatable issue as there are decisions available on the both the sides, on applying rule as laid down in the case of Mysore Minerals Limited vs. CIT, [1999 (9) TMI 1 (SC)] that in case there are two possible views, a view favorable to the assessee should be adopted - decided in favour of assessee. - ITA No.416/Agr/2011 - - - Dated:- 22-6-2012 - SHRI BHAVNESH SAINI, AND SHRI A.L. GEHLOT, JJ. Appellant by : Shri Rajendra Sharma, Advocate Respondent by : Shri Waseem Arshad, Sr. D.R. ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: This is an appeal filed by the assessee against the order dated 29.09.2011 passed by the ld. CIT(A)-II, Agra for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified for the deduction as claimed by appellant u/s 54F of I.T. Act. 4. That the order passed by the AO dated 14.11.2007 and the order of the CIT (Appeals) dated 29.9.2011 are bad in law. 2. The brief facts of the case are that notice under section 148 of the Income Tax Act, 1961 ( the Act hereinafter) was issued and served on 30.03.2007. The notice was issued after recording reasons under section 147 of the Act which as noted by the Assessing Officer in his order are as under :- In the order passed u/s 154 of the I.T. Act, 1961 on 24.09.2002 it was held that capital gain of Rs.3,60,510/- was wrongly claimed to be exempt u/s 54F for the residential house purchased by his son is not admissible. In view of the above reasons, I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under section 148 dated 11.04.2007. 4. We have heard the learned Representatives of the parties and records perused. Section 147 provides that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment, he may subject to provisions of section 148 to 153 assess or re-assess such income which has escaped assessment. The proviso to section 147 provides that where an assessment under sub-section (3) of section 143 has been completed, the Assessing Officer is empowered to take action under section 147 after expiry of four years from the end of the relevant Assessment Year. It is further provided that the Assessing Officer may assess or reassess such income other than income involved matter whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r revising assessment by inclusion of the assessee s share in the profit of the firm would be taken later on receipt of the report of the I.T.O. assessing the firm. In the context of these facts, the Hon ble High Court of Allahabad observing that Section of 23 of Indian Act contemplates that the I.T.O. should make complete assessment on the basis of total income of an assessee. It is not open to him to make assessment peace meal and in a case where I.T.O. has proceeded to assess one part of the income and has decided the case of the income on later date, he cannot rely on the provisions of section 134 of the then Act for the purpose of reopening assessment. Similar are the facts in a case before the Hon ble High Court of Madras in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In addition to the above, it has also been noticed that Apex Court has laid down law in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561 (SC) that after April 1989 the Assessing Officer has power to reopen assessment under section 147 provided Assessing Officer has reason to believe that income has escaped assessment and there is tangible material to come to the conclusion that there is escapement of income from assessment. Change of opinion shall not per se reason to reopen. If we apply this law and the judgement of Apex Court to the case under consideration, we find that the case of the Assessing Officer was that the assessee has re-invested the same consideration for availing benefit under section 54F in the name of his son. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vs. ITO, Appeal No.50/2002 Writ Petition 2179/2002 judgment dated 12th September, 2008 reported in CA Journal 57 November 2008 wherein it has been held that the reinvestment is to be made only in though name of the assessee. Similar view has been taken by Punjab Haryana High Court in the case of Jai Narayan vs. ITO, 306 ITR 335. In the light of the above discussions, we find that this is a controversial issue. Under the circumstances, it cannot be said that there was reason to believe that there was escapement of assessment. Since the conditions laid down under section 147 of the Act has not been complied with by the Assessing Officer, therefore, reopening of assessment cannot be upheld. 11. As regards merit of the case, as discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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