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TMI Blog2017 (9) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... s not said so in the reasons. More importantly, if the fair market value, according to him was ₹ 2,41,800/- for the plot of land while computing the possible value of the income having escaped assessment, he gives no benefit of indexation of such cost of acquisition from 01.04.1981 till the date of sale of land. Assessing Officer exhibited absolute non-application of mind to the facts and materials on record. The notice for reopening of assessment was, therefore, based on reasons which were the product of such non-application of mind. Notice must therefore be quashed. - Decided in favour of assessee. - Special Civil Application No. 19957 of 2016 - - - Dated:- 28-8-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Petitioner : Mr Manish J Shah, Advocate For The Respondent : Mr Nitin K Mehta, Advocate ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged notice dated 15.03.2016 issued by the respondent-Assessing Officer to reopen the petitioner's assessment for the assessment year 2009-10. 2. Facts are as under: Petitioner-Vitthal Prajapati is a son and legal hair of deceased Takhiben Prajap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer for issuing the said notice dated 31.03.2012 nor the department has disputed the petitioner's averments that no final order of assessment was passed by the Assessing Officer pursuant to such notice in case of Takhiben. 5. It appears that in case of the other co-owners i.e. the four sons of Takhiben, assessment orders under section 153A read with section 143(3) of the Act came to be passed on 26.03.2015, in which, the question of correct valuation of the said land was a focal point. The Assessing Officer relied on the valuation reports and came to the conclusion that the fair market value of the land on 01.04.1981 was highly inflated. The factum of these assessment orders were brought to the notice of the present respondent as the Assessing Officer of Takhiben. He thereupon issued the impugned notice dated 15.03.2016 seeking to reopen the assessment of Takhiben for the assessment year 2009-10 for which purpose, he had recorded following reasons: On verification of information available with thi office, it is observed that the above mentioned assessee had jointly sold (5 co-owners 1/5 the share of assessee) a plot of land, bearing Final Plot No. 84/2, in Thaltej t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Takhiben had filed no return which was factually incorrect. He, therefore, proceeded on the entirely wrong premise and his reasons therefore, lacked validity. iv. It is also contended that the action of reopening of assessment was not authorized by the Commissioner of Income Tax as is required under the law. v. It was contended that the fresh orders of assessment in case of the co-owners under section 153A read with section 143(3) of the Act were challenged by the assessees before the Commissioner (Appeals) who has allowed the appeals. 8. On the other hand, learned counsel Mr. Nitin Mehta for the department contended that the Assessing Officer has recorded proper reasons. Merely because inadvertently he has referred to the assessee not having filed the return would not be fatal to the notice. The reasons recorded do not proceed on this premise. The foundation of the reason is that the assessee has inflated the cost of acquisition of land to avoid capital gain. This came to the notice of Assessing Officer only recently when the assessement orders in case of co-owners were brought to his notice. He also made available the departmental file to show that the Commissioner had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot supply such reasons from any material or grounds outside of the reasons recorded by him. ii. In background of such legal position, we may peruse the reasons more minutely. One of the grounds pressed in service by the Assessing Officer is that, according to him, the assessee had not filed the return of income for the said assessment year 2009-10. During the period relevant to the said assessment year, the assessee had received a sale consideration of ₹ 1.10 cores through sale of long term capital asset which had to be taxed as long term capital gain. This first premise of the Assessing Officer that the assessee had not filed the return is false. The record conclusively establishes that notice for filing return was issued on 31.03.2012, in response to which, the assessee filed the return declaring the said sale of land through which she had received a consideration of ₹ 1.10 crores. This was, in fact, the only worthwhile receipt of the assessee during the relevant period. During the assessment proceedings, the assessee had brought on record the assessment orders in case of the coowners of the land where identical valuation and declarations were accepted by the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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