9911796707
TMI Blog1990 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... s New Excelsior Theatre Building for a sum of Rs. 61,00,000 on December 6, 1974, from S. P. Builders, a partnership firm, which is stated to have held 40% shares in the petitioner-company. After the assessment as stated above was completed in the case of the petitioner, the said property came to be valued by the departmental valuer in the case of S. P. Builders. According to the Valuation Officer, the fair market value of the property on the date of the sale was Rs. 1,04,80,000. The assessment of that firm for that year was made taking the market value of the property at Rs. 1,04,80,000 and the said firm was charged to capital gains accordingly. In the petitioner's case, assessment was sought to be revised under section 263 and after allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue that the notice of demand and assessment order will not be served on the petitioner, even if the assessment is completed, till the disposal of the petition. No affidavit-in-reply has yet been filed by the Department. It, however, appears to be a common case that the impugned notice was issued on the basis of the information that the market value of the suit property was Rs. 1,04,00,000 and not Rs. 61,00,000 as was stated in the sale deed. It is stated by Shri Bhujle, learned counsel for the petitioner, that apart from the fact that whether the market value of a particular property is X amount or Y amount is a matter of opinion and not a fact, as such, merely on the basis of this information, the Income-tax Officer could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to have any information more than the information as regards the market value at the stage of reopening the assessment. The fact that the market value of a property is substantially higher than the value shown in the deed of conveyance is, according to Dr. Balasubramanian, a sound and valid reason for the formation of the belief that income had escaped assessment. As regards the other contention that the petitioner cannot be blamed for not disclosing full and relevant facts necessary for assessment, Dr. Balasubramanian stated that when the assessment was taken up originally, there was very little time on hand. The valuation report could not be available. The assessment was completed in the absence thereof so much so that when the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue will provide sound basis for the reason to believe that income has escaped assessment. Assuming, for the sake of argument, the contention of Dr. Balasubramanian that such a material will never be available to the Income-tax Officer at the stage of initiating the proceedings under section 148 is accepted, the fact cannot be disputed that for reopening the assessment under section 147(a), one more condition is required to be fulfilled. That condition is that formation of belief that income has escaped assessment must be by reason of either the assessee's omission to file a return of income or non-disclosure of full and material facts necessary for assessment. There is no suggestion in this case that the return was not filed. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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