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TMI Blog2018 (10) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... However, this is not the cited reason for reopening the assessment. The reasons cited are that the assessee filed no return and that 1/3rd share of the assessee from the actual sale consideration of ₹ 1,18,95,000/ therefore, was not brought to tax. These reasons are interconnected and interwoven. In fact, even if these reasons are seen as separate and severable grounds, both being factually incorrect, Revenue simply cannot hope to salvage the impugned notice. Through the affidavit-in-reply a faint attempt has been made to entirely shift the center of the reasons to a completely new theory viz. the possible applicability of section 50C of the Act. The reasons recorded nowhere mentioned this possibility. Reasons recorded, in fact, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration of ₹ 1,18,95,000/with SubRegistrar Office, Surat2, Udhana, during the FY.200910 relevant to A.Y. 2010-11, jointly with two other persons. Therefore, the share of the assessee comes to ₹ 39,65,000/( presuming 1/3rd of ₹ 1,18,95,000/). However, on verification from ITD system, it is seen that the assessee has not filed return of income for A.Y. 2010-11. Since, the assessee has not filed return of income, capital gain earned on the sale of immovable property has not been offered for taxation by the assessee. Therefore, the property sale transactions made by her during the financial year 200910 are unexplained/undisclosed. In view of the above facts, I, have reason to believe that income chargeable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 2,45,900/by way of capital gain. He therefore contended that on both counts, the Assessing Officer had recorded wrong reasons. 6. The Assessing Officer rejected such objections by an order dated 27.10.2017. In such order, he recorded that the coowner Ayubkhan Pathan had declared the total sale consideration of the property at ₹ 1,18,95,000/. Further, the report received from the subregistrar, Surat, would show that the market value of the said property was determined at ₹ 1,18,95,000/. He was therefore of the opinion that the assessee should have shown his share of the sale consideration at ₹ 39,65,000/, in spite of which, he declared the sum at ₹ 16,66,667/. Primarily on these grounds, the objections were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sagar Enterprises v. Assistant Commissioner of Incometax reported in [2002] 257 ITR 335 (Guj). 9. Learned counsel for the Revenue opposed the petition contending that even though reference to the assessee not having filed the return may be an error, the same would not vitiate the action of the Assessing Officer. The fact remains that the assessee had shown a sale consideration of ₹ 50 lakhs in the sale deed whereas for the purpose of stamp duty calculation, the market value of the property was valued at ₹ 1,18,95,000/. Section 50C of the Act would therefore apply. 10. We are conscious that in the present case, the return filed by the assessee was not taken in scrutiny. Nevertheless, in such a case also the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was ₹ 50 lakhs. 12. The Assessing Officer may be correct in pointing out that when the sale consideration as per the sale deed is ₹ 50 lakhs but the registering authority has valued the property on the date of sale at ₹ 1,18,95,000/for stamp duty calculation, section 50C of the Act would apply, of course, subject to the riders contained therein. However, this is not the cited reason for reopening the assessment. The reasons cited are that the assessee filed no return and that 1/3rd share of the assessee from the actual sale consideration of ₹ 1,18,95,000/therefore, was not brought to tax. These reasons are interconnected and interwoven. In fact, even if these reasons are seen as separate and severable grounds, bot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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