9911796707
TMI Blog2014 (11) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... formation were there before the Assessing Officer - The AO has duly taken note of the sale agreement in the assessment order - assessee has fully and truly disclosed all the material facts necessary for its assessment - for acquiring the jurisdiction u/s 147, the AO has taken note of some information received from the Income Tax Officer that the market value of flat is higher than the sale consideration and, thereafter, he has ascribed failure on the part of the assessee - the information about the market value of the property was at ₹ 1,44,55,000, was already there in the record during the course of the assessment proceedings - Once the information was already there in the record, then receiving of information on the same point cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehta For the Respondent : Shri Ashwini K. Sinha ORDER Per: Amit Shukla: The present appeal has been preferred by the Revenue and the cross objection by the assessee challenging the impugned order dated 12th March 2013, passed by the learned Commissioner (Appeals), Mumbai, for the quantum of assessment passed under section 143(3) r/w section 147 of the Income Tax Act, 1961 (for short the Act ) for the assessment year 2004 08. 2. Before us, the learned counsel, Shri Vijay Mehta, on behalf of the assessee, submitted that in the cross objection filed by the assessee, the validity of the assessment and the proceedings under section 147, has been challenged which goes to the very root of the matter and, therefore, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,00,000 and after reducing the cost of transfer fo ₹ 1,75,800, net sale consideration stood at ₹ 1,15,24,200. Apart from the above, during the relevant assessment year, assessee derived short term capital gain of ₹ 2,65,426 on plant and machinery and loss of ₹ 5,95,200 on sale of motor car. Thus, the aggregate net short term capital gain on sale of assets was shown at ₹ 95,81,614 as computed in Schedule IV of computation of income attached with the return of income. Subsequently, an intimation was received from the ITO 5(2)(4), Mumbai, vide letter no.ITO5(2)(4)/Intimation/2010 11 dt. 14.02.2011 that assessee s company has sold property for ₹ 1,17,00,000 whereas the market value of the property as per dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luation Officer (DVO) for the valuation of the flat which was sold by the assessee for ₹ 1.17 crores. However, till the passing of the assessment order, the DVO s report could not be obtained, therefore, he adopted the value of the sale of flat at ₹ 1,44,55,000, as taken by the stamp duty authorities in view of section 50C. Accordingly, the difference of ₹ 27,55,000, was treated as short term capital gain. 5. The learned Commissioner (Appeals), on the issue of validity of re opening under section 147, rejected the assessee s contention. However, on merits, he gave the relief on the ground that the DVO s report which was made available at the stage of first appellate proceedings, the value adopted was ₹ 1,31,06,400 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant assessment year, is clearly barred in view of the embargo laid down in proviso to section 147. Thus, there was no failure on the part of the assessee to disclose fully and truly all material facts and, therefore, re opening beyond the period of four year in the case of the assessee cannot be legally made. 7. The learned Departmental Representative, on the other hand, submitted that even though the sale agreement was filed before the Assessing Officer, the fair market value as determined by the stamp valuation authority might have escaped the attention of the Assessing Officer. Under the Explanation to section 147, such a re opening can be done. 8. We have heard the rival contentions and perused the relevant findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. Thus, for acquiring the jurisdiction under section 147, the Assessing Officer has taken note of some information received from the Income Tax Officer that the market value of flat is higher than the sale consideration and, thereafter, he has ascribed failure on the part of the assessee. As stated above, the information about the market value of the property was at ₹ 1,44,55,000, was already there in the record during the course of the assessment proceedings, as mentioned in the sale deed itself. Once the information was already there in the record, then receiving of information on the same point cannot be held to be new information or any tangible material coming into record. Merely mentioning that the assessee has failed to disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
