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TMI Blog2013 (4) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... tion benefit while computing the short term capital gain, (b) the exemption claimed by the assessee under sec. 54 of the Act is not in order and (c) the land on which short term capital gain was claimed was only a vacant land and not an agricultural land. All these reasons cited by the Assessing Officer cumulatively show that the AO had reason to believe that there was escapement of income. Hence, AO was justified in initiating re-assessment proceedings and accordingly, the grounds raised by the assessee in this regard rejected. Against assessee. Whether the land sold by the assessee is an agricultural land or not? - Held that:- The issues relating to the nature of land and the claim of exemption u/s 54B have not been properly examined by the tax authorities as the AO as well as the CIT(A) has placed more reliance on the report of the Inspector of Income tax and the development work carried out by the purchaser of land. Thus all these issues require fresh examination at the end of the assessing officer. In favour of assessee for statistical purposes. - I.T.A. No.250/Coch/2012 - - - Dated:- 12-4-2013 - Shri N. R. S. Ganesan, JM And B. R. Baskaran, AM,JJ. Shri C.B.M. Warri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inent to note that the assessee did not urge before us the issue relating to the rejection of exemption u/s 54 of the Act and hence the said issue has attained finality by the order passed by Ld CIT(A). 5. Besides the issues urged on merits, the assessee has also urged two legal grounds before us. Hence, we prefer to adjudicate the legal grounds initially. The first legal ground urged by the assessee is that the copy of the assessment order served upon him was not signed by the Assessing Officer and hence, the entire assessment has to be treated as invalid. In this regard, the Ld. Counsel for the assessee placed reliance on the following case law:- (a) Vijay Corporation vs. Income-tax Officer, (2012) (50 SOT 33) (Mum.) (b) Smt. Kilasho Devi Burman and Others vs. CIT, (219 ITR 214) (SC). (c) Kalyankumar Ray vs. CIT, (191 ITR 634) (SC). In this regard, the assessee has also filed an additional ground wherein it is contended that the assessment is barred by limitation since no valid assessment order is served on the assessee before the expiry of the limitation period. 5. The Ld. DR, however, submitted that the notice of demand issued to the assessee u/s.156 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order nor a signed assessment form." Thus, in the said case also, the assessment record did not contain signed assessment order. In the case of Kalyankumar Ray (supra), the question that arose before the Hon'ble Apex Court was whether the assessment order itself should contain the calculations of tax, interest etc or not. In the case of Kalyankumar Ray (supra), the Hon'ble Supreme Court referred to the decision rendered by Hon'ble Calcutta Court in the case of Sushil Chandra Ghose Vs. ITO (1959)(35 ITR 379) and the relevant observations of Hon'ble Apex Court are extracted below:- "In sushil Chandra Ghose Vs. ITO (1959) 35 ITR 379 (Cal), the assessee was served apart from the assessment order, with a copy of the form known as I.T.N.S. 150 which was not signed by the Income tax officer but the court upheld the assessment because the original thereof had been duly signed." The Hon'ble Supreme Court also considered the significance of Form I.T.N.S. 150 ("Income tax computation Form" or Form for "Assessment of Tax/Refund") and observed as under:- "We are unable to see why this document, which is also in writing and which has received the imprimatur of the Income tax Officer, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of re-opening of instant assessment u/s. 147 of the Act. According to the assessee, the reopening is bad since the Assessing Officer has failed to pass the assessment order on the original return of income filed by the assessee. We find that this contention of the assessee is not in accordance with the decision rendered by the Hon'ble Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd., 291 ITR 500 wherein the Hon'ble Supreme Court has held that the Assessing Officer is free to initiate proceedings under sec. 147 so long as the ingredients of sec. 147 are fulfilled and failure to take steps u/s. 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when an intimation u/s. 143(1) had been issued. 11. The assessee also contends that there is no escapement of income and hence the reassessment notice is bad in law. However, on a perusal of the assessment order, we notice that the Assessing Officer has pointed out that (a) the assessee has claimed indexation benefit while computing the short term capital gain, (b) the exemption claimed by the assessee under sec. 54 of the Act is not in order and (c) the land on which sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown as "Purayidom", which means "residential purpose land" in Malayalam language. During the course of hearing, the Ld A.R, however, disputed the said interpretation and submitted that the Coconut grove is called "Thengin Purayidom" in Malayalam language and hence the word "purayidom" cannot be construed as 'residential purpose land" as interpreted by the assessing officer. 14. The pertinent point to be noted here is that the sale of impugned land has taken place in July, 2006 and the Inspector of income tax has verified the land records in June, 2012, i.e., after a gap of six years. Further the copies of said land records were not produced before us and it is also not clear whether the assessee was given an opportunity to examine the same. On the contrary, the assessee has furnished copies of "Basic Tax Register" pertaining to the impugned lands, wherein they have been described as "Dry land". Thus, there is apparent contradiction between both the parties with regard to the nature of land. 15. We notice that the assessing officer has given more importance to the fact that the purchaser of land has used it for constructing villas, i.e., non-agricultural purposes. In our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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