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TMI Blog2013 (9) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of the assessee was computed by the A.O. at ₹ 1,90,65,500/- mainly comprising of long term capital gain. The said assessment was subsequently reopened by the A.O. and after recording the reasons, a notice u/s 148 of the Act was issued by him on 22-3-2010. In reply, a letter was filed by the assessee on 12-4-2010 stating that the return filed on 1-12-2003 may be treated as the return filed in response to notice issued u/s 148 of the Act. In the reassessment completed u/s 143(3) r.w.s. 147 of the Act, total income of the assessee was determined by the A.O. at ₹ 2,95,70,400/- after withdrawing the deduction allowed in the original assessment of ₹ 1,27,14,993/- on account of indexed cost of acquisition while comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1,90,65,499/-. In the assessment order by invocation of the provisions of section 50C(1) of the Act, the long term capital gain on transfer of land development rights (LDRs) was computed at ₹ 3,46,02,007/-. It is seen from the records that the assessee is covered by the Urban Land Ceiling Act, it has restrictions on transfer of land, and what could be transferred are only the development rights. Further as the transfer of LDRs does not entail transfer of any asset the assessee is still the owner of the land. As such according to the audit the deduction of indexed cost of acquisition of the land at ₹ 1,2 7,14,993/-in the assessment order was incorrect and hence there is underassessment to the extent of ₹ 1,27,14,993/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Asian Paints Ltd. Vs. DCIT 308 ITR 195, the Hon ble jurisdictional High Court had an occasion to consider a similar issue and it was held in this context that when a regular order of assessment is passed in terms of Section 143(3), a presumption can be raised that such order has been passed on an application of mind. It was also held that if non-application of mind by A.O. in passing an order would itself confer jurisdiction upon the A.O. to re-open the proceedings without anything further, it would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong. It was further held that the legislature has not conferred the power on the A.O. to review his own order. The reassessment proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this issue and allow ground No. 1 of assessee s appeal. 7. Keeping in view of our decision rendered above on the preliminary issue raised in ground No. 1 upholding the impugned order of the ld. CIT(A) canceling the assessment made u/s 143(3) r.w.s. 147 of the Act treating the same as bad in law, the issue raised in ground No. 2 Revenue s appeal challenging the deletion of by the ld. CIT(A) of the addition made by the A.O. by way of disallowance of indexed cost of acquisition has become infructuous although the same as noted by the ld. CIT(A) in his impugned order is covered in favour of the assessee by the decision of the Tribunal in assessee s own case for A.Y. 1996-97 holding that the land development right is a capital asset. We, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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