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TMI Blog2018 (9) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire transaction was fraudulent and no sale actually took place, are the issues we are not inclined to go into in the present petition. The petitioner must submit to the jurisdiction of the Assessing Officer who alone can ask relevant questions in this respect and take a final decision while framing re-assessment. If the Assessing Officer is prevented from carrying out assessment, the serious question of such assessment getting time barred by the time the petitioner's litigation before the Civil Court achieves finality. This is not a case where the very liability or in the present case, the question of gain is under litigation. What is under litigation is the factum of the transfer of capital asset. If eventually the petitioner l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to her old address which she did not receive. Be that as it may, the petitioner did not respond to this notice. Subsequently, the Assessing Officer issued impugned notice for reopening. In order to do so, he had recorded following reasons: Reasons for reopening of the assessment in case of ABHA VINAYKUMAR JAIN for A.Y. 2011-12 u/s. 147 of the Act. In this case, the assessee has filed her return of income on 29.07.2011 declaring total income at ₹ 20,11,865/-. The same was processed u/s. 143(1) of the act on 08/09/2011 at ₹ 20,25,700/-. The assessee is earning income from salary, house property and income from other sources. 2. In this case, information received from the ITO, Ward- 4(1)(1), Ahmedabad that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee hence, it is premature to say that there is no transaction. 4. On verification of return of income filed for AY 2011-12 it is noticed that the assessee has not shown any amount of capital gain under the head Capital Gain . On further verification of complaint filed by the assessee that the assessee has mentioned in complaint that he has purchased above mentioned property on 06/10/2009 for consideration of ₹ 15,01,000/-. In view of the above it is found that the period of holding of such immovable property is less than 36 month. Therefore, short term capital gain on sale of said property is worked out at ₹ 59,36,000/- (7437000(-)1501000). In view of the above facts, the assessee was require to disclose ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice u/s. 148 has been obtained separately from Principal Commissioner of Income Tax-1, Ahmedabad as per the provisions of section 157 of the Act. 3. The petitioner raised objections to the notice of reopening under a communication dated 28.08.2018. Hence, this petition. 4. Material on record would show that the return filed by the petitioner for the assessment in question was accepted without scrutiny. In such return, the petitioner had not disclosed the capital gain arising out of the sale transaction in question. According to the petitioner, however, she had never executed such sale deed and the sale document was fraudulently created. 5. On the premise of such facts, learned counsel for the petitioner vehemently contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a situation, the Assessing Officer would have much wider latitude to reopen the assessment. Since in the original assessment no scrutiny was undertaken, the Assessing Officer cannot be stated to have formed an opinion. The principle of change of opinion therefore would not apply. Reference in this respect can be made to the decision of Supreme Court in case of Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers P.Ltd reported in 291 ITR 500 which was later on reiterated in case of Deputy Commissioner of Income Tax and anr vs. Zuari Estate Development and Investment Company Ltd. reported in 373 ITR 661. 7. Whether there is prima facie evidence suggesting transfer of capital asset or whether the petitioner is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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