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TMI Blog2021 (3) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to provision of Section 50C of the Act has not been seen at all. Mere production before AO of sale deed alongwith receipt of Registering Authority which encompasses some figures representing value on which stamp duty is payable will not, in the absence of anything more, necessarily amount to disclosure for the purpose presuming formation of opinion. We thus concur with the view taken by the CIT(A) and hold that where the relevant facts have been overlooked and has not taken cognizance of, resulting in escapement of chargeable income, such omission would not constitute change of opinion . In the absence of any other contention, we do not see any merit in the plea of assessee towards wrongful usurpation of jurisdiction under s.147 - Decided against assessee. - I.T.A. No. 465/Ahd/2016 (Assessment Year: 2010-11) - - - Dated:- 19-2-2021 - SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SMT. MADHUMITA ROY, JUDICIAL MEMBER Appellant by: Shri M. K. Patel, A.R. Respondent by: Shri L. P. Jain, Sr.D.R. ORDER PER PRADIP KUMAR KEDIA - AM: The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Please furnish the copy of sale deed of property sold and explain capital gain. Also explain the details of share investment source thereof and copy of demat account. 6. It was thus submitted that the fact of sale of house property on 21.08.2009 for a consideration of ₹ 8 Lakhs as per sale deed was very much present to the mind of the Assessing Officer and therefore invoking s.147 of the Act for substitution of deemed sale consideration of ₹ 13,17,000/- in place of ₹ 8 Lakhs for the purposes of determination of capital gains with reference to Section 50C of the Act is not justified at all. It was pointed out that the aforesaid act of the AO is merely a change of opinion in an existing fact on a completed assessment which is not permissible in law having regard to the plethora of judicial precedents including CIT vs. Kelvinator of India Ltd. (2002) 256 ITR 1 (Del)(FB) . It was thus contended that having regard to the schematic interpretation to the expression reason to believe used in Section 147 of the Act, the action of the AO in assuming jurisdiction under s.147 of the Act is arbitrary. It was asserted that having regard to the query raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vast difference between apparent consideration referred to in the sale deed qua adoptable sale consideration. It was thus contended that in the absence of any conscious opinion discernible from the record on the applicability or otherwise of Section 50C of the Act in the facts of the case, the question of alleged change of opinion thereon does not arise at the first place. It was further pointed out that the assessee has not challenged the additions on merits in the reassessment proceedings even before CIT(A) and therefore, the re-assessment order framed by the AO as upheld by the CIT(A) does not call for any interference by the Tribunal at this belated stage. 8. We have carefully considered the rival submissions. We shall straightaway address ourselves to the validity of assumption of jurisdiction under s.147 of the Act in the instant case. As enlightened by the facts noted in earlier paras, the case of the assessee was re-opened by issuance of notice under s.148 of the Act alleging under-reporting of capital gains arising to Assessee on sale of immovable property having regard to the provisions of Section 50C of the Act. The reasons recorded under s.148(2) of the Act in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant facts. The assessee has failed to show that the adoptable value of the property in sale under s.50C of the Act was put to the notice of the AO and reasons were cited for departure therefrom. The difference between the deemed full value of consideration accruing to the assessee as a result of transfer of property and the apparent sale consideration as recorded in the sale agreement is not found to be considered by AO. No explanation for vast difference in the sale consideration qua adoptable value is discernible from the record. Hence, the AO was in no position to accept or reject the sale consideration declared by the assessee in its return of income for the purpose of capital gains. Pertinently, no enquiry was shown to be made by the AO from the perspective of applicability of Section 50C of the Act or otherwise on the issue of computation of capital gains in the original proceedings. In the circumstances, it is difficult to record a finding of fact that a legitimate opinion on applicability or otherwise of Section 50C of the Act has been tested on facts by the AO in the original proceedings. Agreeably, Section 147 does not postulate conferment of the power upon the AO t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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