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TMI Blog2018 (8) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied. - Decided in favor of assessee. - R/SPECIAL CIVIL APPLICATION NO. 3506 of 2018 - - - Dated:- 20-8-2018 - MR. AKIL KURESHI AND MR. B. N. KARIA, JJ. For The Petitioner : MR TUSHAR HEMANI with MS VAIBHAVI K PARIKH (3238) For The Respondent : MRS MAUNA M BHATT (174) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a notice dated 6.9.2017 issued by the respondent Assessing Officer to reopen the petitioner s assessment for the assessment year 2012-13. 2. Brief facts are as under : 2.1. The petitioner is an individual and is engaged in various businesses. He earns income from rental charges, interest, dairy farming and agriculture. For the assessment years 2012-13, the petitioner had filed return of income on 18.3.2014 declaring total income of ₹ 38.99 lacs (rounded off). Such return was taken in scrutiny. During the scrutiny assessment, Assessing Officer raised multiple queries which were replied by the assessee. The Assessing Officer passed order of assessment under Section 143(3) of the Incometax Act, ( the Act for short) on 30.3.2015 accepting the returned income. 3. To reopen such assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Period of 2 yr. was not completed and land was sold as non-agri. - 4028520 Village Makarba City,Taluka Ahmedabad, Block/Survey no.548, Hissa16, 708 Sq.Mt. Non-Agri.land. 13459 dt. 16.12.11 19000000 14971480 14971480 Nonagricult ural permission was granted vide order no.CB/Ad/M NA/Sr.532 dt. 13.11.09 Thus, lands sold by the assessee was not utilized for the agricultural purpose two years immediately preceding the date on which transfer took place. Hence the assessee has violated the provision of section 54B of the IT Act and deduction was incorrectly allowed. This resulted into under assessment of ₹ 4,54,15,006/. In view of the above, I have reason to believe that, income chargeable to tax has escaped assessment within the meaning of section 147 of the IT Act for the A.Y. 2012-13 by an amount of ₹ 4,54,15,006/. The assessee also failed to disclose fully and truly all material facts necessary for his assessment. Therefore, this is a fit case for issue of notice u/s.148 of the IT Act, for the A.Y. 2012-13. 4. Upon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale/purchase during the year. In yet another letter dated 13.3.2015 the Assessing Officer indicated as under : 4. Further, as per the AIR information available with this office, it is seen that you have purchased various immovable properties on different dates total valued at ₹ 13,96,51,750/. Further, as per the AIR information, it is also noticed that you have sold various immovable properties on different dates total valued at ₹ 7,85,48,500/. You are, therefore, required to furnish details of the properties purchased explaining the source thereof with supporting evidences and copies of purchase deeds as well as details of sold properties with copies of purchase and sale deeds of the sold properties with working of capital gain arisen. Since you are not complying the statutory notices issued till date, in the case of absence of the above details, you are requested to show cause as to why the purchases of immovable properties should not be treated as unexplained purchases out of undisclosed sources to the tune of ₹ 13,96,51,750/and the sale consideration received on sale of properties at ₹ 7,85,48,500/should not be treated as your income for the year u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of incometax. 13. In case of Gujarat Power Corporation Ltd., vs. Assistant Commissioner of Incometax reported in (2013) 350 ITR 266 (Guj.) the Division Bench of this Court in the context of reopening of the assessment previously framed after scrutiny observed as under : 41. The powers under section 147 of the Act are special powers and peculiar in nature where a quasijudicial order previously passed after full hearing and which has otherwise become final is subject to reopening on certain grounds. Ordinarily, a judicial or quasijudicial order is subject to appeal, revision or even review if statute so permits but not liable to be reopened by the same authority. Such powers are vested by the Legislature presumably in view of the highly complex nature of assessment proceedings involving large number of assessees concerning multiple questions of claims, deductions and exemptions, which assessments have to be completed in a time frame. To protect the interest of the revenue, therefore, such special provisions are made under section 147 of the Act. However, it must be appreciated that an assessment previously framed after scrutiny when reopened, results into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch to expect him to carry. Irrespective of this, in a given case, if the Assessing Officer on his own for reasons best known to him, chooses not to assign reasons for not rejecting the claim of an assessee after thorough scrutiny, it can hardly be stated by the revenue that the Assessing Officer can not be seen to have formed any opinion on such a claim. Such a contention, in our opinion, would be devoid of merits. If a claim made by the assessee in the return is not rejected, it stands allowed. If such a claim is scrutinized by the Assessing Officer during assessment, it means he was convinced about the validity of the claim. His formation of opinion is thus complete. Merely because he chooses not to assign his reasons in the assessment order would not alter this position. It may be a nonreasoned order but not of acceptance of a claim without formation of opinion. Any other view would give arbitrary powers to the Assessing Officer. 43. We are, therefore, of the opinion that in a situation where the Assessing Officer during scrutiny assessment, notices a claim of exemption, deduction or such like made by the assessee, having some prima facie doubt raises queries, asking the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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