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TMI Blog2019 (1) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 21.03.2018, the Assessing Officer had called upon the petitioner to furnish the details of sale of the property in question, in response to which, the petitioner had given a reply dated 26.03.2018 pointing out that transaction of sale building in Rang Mahaal which has been mentioned in the letter dated 21.03.2018 and the capital gain emerging therefrom, has been included in the income. The petitioner had also enclosed copies of the computation of income as well as the sale deed of the property in question. Despite the aforesaid position, in the reasons recorded, the Assessing Officer has stated that the assessee has not furnished any details in this regard despite letter having been issued to him. AOr has not applied his mind to the facts of the case and that the formation of belief on the part of the Assessing Officer that income chargeable to tax has escaped assessment is also based on an incorrect premise that the petitioner had not offered the capital gain arising from the sale of immoveable property in the return of income In this case, the assessment is sought to be reopened beyond a period of four years from the end of relevant assessment year. Therefore, unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his income. The petitioner also enclosed the Computation of Income and a copy of the Sale Deed. Thereafter, by the impugned notice dated 31.03.2018, the respondent seeks to reopen the assessment of the petitioner for the assessment year 2011-12. Upon receipt of such notice, the petitioner filed return of income vide letter dated 03.04.2018 and thereafter, called upon the respondent to furnish a copy of the reasons recorded. Upon such reasons being furnished, the petitioner filed objections vide letter dated 26.05.2018. By an order dated 16.07.2018, the respondent rejected the objections. Being aggrieved, the petitioner has filed the present petition. 5. Mr. S. N. Divatia, learned advocate for the petitioner, submitted that in this case, the assessment for assessment year 2011-12 is sought to be reopened by the impugned notice dated 31.03.2018, which is clearly beyond a period of four years from the end of relevant assessment year, and hence, in the absence of any failure on the part of the petitioner to disclose fully and truly the material facts necessary for his assessment, the assumption on the part of the Assessing Officer is without any authority of law. The attention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit-in-reply. It was submitted that insofar as the incorrect recording of the fact that in this case there was no scrutiny assessment under section 143(3) of the Act is concerned, the Assessing Officer has duly corrected himself in the order disposing of the objections by pointing out that, in the first paragraph of the reasons recorded it is duly reflected that the assessment under section 143(3) of the Act had been carried out. It was urged that income has escaped assessment on account of failure on the part of the petitioner to disclosed fully and truly all material facts and therefore, there is no jurisdictional error on the part of the Assessing Officer in issuing the impugned notice, so as to warrant interference by this court. 7. Before adverting to the merits of the case, reference may be made to the reasons recorded for reopening the assessment which read as under: 1. Brief details of the Assessee: Assessee is an individual and he has filed the return for the year under consideration declaring total income at ₹ 26,14,610/-. The assessee is engaged in the business of construction activities. The assessment u/s. 143(3) of the Act was completed on 21.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration. Hence necessary sanction to issue notice u/s. 148 has been obtained separately from Principle Commissioner of income tax as per the provisions of section 151 of the Act. 8. On a bare perusal of the reasons recorded, it is apparent that the Assessing Officer seeks to reopen the assessment on the ground that the petitioner had sold the immovable property for a consideration of ₹ 6,07,000/- during financial year 2010-11 but had not shown the capital gain arising out of such transaction in the return of income and therefore, income chargeable to tax has escaped assessment. In this regard, a perusal of the return of income filed by the petitioner shows that he has duly shown the long term capital gain arising out of the sale of property in question and has also given a detailed computation of income in the statement of Long Term Capital Gain. Therefore, the Assessing Officer appears to have proceeded on a factually incorrect premise to the effect that the petitioner had not offered the long term capital gain for taxation. 9. Moreover, it is evident that the consideration received on account of sale of the immovable property as reflected in the reasons recorded i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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