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TMI Blog2016 (12) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. [2.0] By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the impugned notice dated 29/03/2016 (Annexure - A) by which the Assessing Officer in exercise of powers under Section 147 of the Income Tax Act has sought to reopen the assessment for the Assessment Year 2009-10. [3.0] The facts leading to the present Special Civil Application in a nutshell are as under; [3.1] The petitioner - assessee filed his return of income on 12/03/2010 declaring his total income at Rs. 18,82,800/-. The petitioner - assessee did not claim any exemption arising from the long term capital gain by sale of shares, as according to the petitioner - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for scrutiny through CASS and order under Section 143(2) was passed on 29/11/2011 total income assessee at Rs. 20,68,860/- after making addition of Rs. 1,86,070/- on account of disallowance under Section 57 of the I.T. Act. On verification, it is found that, during the course of assessment proceedings the assessee has filed revised statement of income and claimed LTCG of Rs. 1,38,25,000/- as exempted under Section 10(38) of the IT Act. In the calculation of LTCG it is seen that the assessee has shown sale value of Rs. 1,38,25,000/- and purchase value indexed /improvement value indexed as Rs.NIL. The LTCG was neither declared in the original return of income filed on 12/03/2010 nor credited to income & expenditure account as well as capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the specific case on behalf of the petitioner - assessee that the reassessment proceedings have been initiated on the basis of the audit objections raised by the audit party. It was also the case on behalf of the petitioner - assessee that there was no omission or failure on the part of the petitioner - assessee to disclose full and true material facts necessary for assessment. It was also the case on behalf of the petitioner - assessee that there is no independent formation of opinion by the Assessing Officer that the income has escaped the assessment due to non disclosure of true and correct facts by the petitioner - assessee. By order dated 01/08/2016 the Assessing Officer disposed of the objections against the petitioner - assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of income and thereafter the Assessing Officer granted the exemption. It is submitted that the reassessment proceedings have been initiated on the ground that without filing the revised return of income the Assessing Officer ought not to have granted exemption. It is submitted that therefore according to the subsequent Assessing Officer the earlier Assessing Officer wrongly granted the exemption. It is submitted that on the aforesaid ground there cannot be any reopening of the assessment beyond four years. It is submitted that mere wrong passing of the order by the Assessing Officer and /or mere granting the exemption wrongly, there cannot be any reassessment proceedings beyond four years. It is submitted that for invoking the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed advocate appearing on behalf of the revenue that in the present case while submitting the original return, the petitioner - assesse did not claim any exemption on long term capital gain on sale of shares. It is submitted that without filing any revised return of income claiming such an exemption the Assessing Officer granted the exemption, which was not permissible. It was the duty cast upon the petitioner - assessee to specifically claim the exemption by filing the return of income and /or revised return of income. It is submitted that in the present case neither in the original return of income nor without filing any revised return of income, the petitioner - assessee has been granted the exemption on long term capital gain. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , considering the decisions of this Court in the case of Commissioner of Income Tax, Ahmedabad IV Vs. Shilp Gravures Ltd. rendered in Tax Appeal No.411/2013 and in the case of Raajratna Metal Industries Ltd. rendered in Special Civil Application No.7140/2014 the same is not permissible. [6.1] Now so far as the first ground /reason to reopen the assessment is concerned, it is required to be noted that the Assessing Officer has sought to reopen the assessment on the ground that though in the return of income the petitioner - assessee did not claim the exemption on long term capital gain and though no revised return was filed, the Assessing Officer was not justified in granting exemption. However, it is required to be noted that after the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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