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TMI Blog1995 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial facts necessary for his assessment for the assessment year 1988-89 and the Assessing Officer in that assessment year (exhibit E, dated March 27, 1991) after due application of mind to the facts put before it had come to the conclusion that the petitioner was not liable to capital gains in respect of Rs. 42 lakhs received by him under an agreement to sell the land, possession of which was handed over to the buyer in the year 1983, in the absence of any duly executed sale deed. In view of the aforesaid, it is contended that the assessing authority had acted in issuing the notice only on a mere change of opinion and he had no reason to hold a belief that income chargeable to tax for the assessment year 1988-89 has escaped assessment. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer under section 2(47) of the Income-tax Act which is not retrospective, cannot also be invoked in the present case by treating it to be a transfer for the purpose of the assessment year 1988-89. This contention of the assessee found favour with the Income-tax Officer and he recorded this finding in exhibit E---the assessment order for the assessment year 1988-89 which is as under : " There was an action under section 132 in this case on July 23, 1987, and it came to light that the assessee had handed over possession of 30,000 sq. yards of land to Shri Popatlal Naranbhai Patel for a total consideration of Rs. 42 lakhs. It was contended on behalf of the assessee that the capital gains would be chargeable only when the sale document is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch and seizure operation was carried out on July 23, 1987, and it has come to the light of the Department that the assessee has sold some land to Shri Popatbhai Naranbhai Patel, partner of Jay Construction, for a total consideration of Rs. 42 lakhs. The assessee had disclosed the said amount, i.e., Rs. 42 lakhs. However, the same has not been taxed in the assessment year 1988-89. A notice under section 148 of the Act was issued by the Assistant Commissioner of Income-tax (Investigation), Circle 2(1), Surat, as the income chargeable to tax had escaped assessment (being sale proceeds of land) within the meaning of section 147 of the Income-tax Act, 1961. The assessee filed a writ application challenging the validity of the above said notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement to sell, that possession of land in question has been delivered to the buyer in 1983 and that sale deed has not been executed were all noticed by the Income-tax Officer in his assessment order of the year in question. The assessing authority, after noticing those facts and the decision of the Gujarat High Court, accepted the contention raised by the assessee about the transaction in question not attracting the provisions relating to capital gains. In fact in the reasons recorded by the assessing authority itself it has been stated that the assessee had disclosed the said amount, that is, Rs. 42 lakhs. Apparently, the notice has been issued after the expiry of four years from the end of the relevant assessment year income in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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