9911796707
Advanced Search 
TMI Blog2021 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant year AY 2012-13 declaring her total income at Rs. 12,01,550/- whereby, she had claimed the exemption of Rs. 1,86,51,572/- under section 54B of the Act. The return of income was processed initially under Section 143(1) of the Act. The case of the assessee for the year under consideration was selected for scrutiny assessment. The notices under Section 143(2) and 142(1) of the Act dated 02.09.20214 and 07.11.2014 respectively, came to be issued and assessee was called for to furnish various details including the details with regard to claim of long term capital gain. The assessee furnished various details including the copy of registered sale deed and bank transactions with regard to purchase and sale of agriculture land to explain the exempt income of Rs. 1,86,51,572/-. During scrutiny proceedings, AO had taken into account the documentary evidence in the nature of sale deed etc. and allowed the long term capital gain to the extent of Rs. 1,85,00,000/- and made addition for the difference amount of Rs. 1,51,572/- to the total income of the assessee under the head of long term capital gain arising out of sale of immovable property. The assessment order was passed on 18.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that on 29.8.2019, the petitioner filed an adjournment application and filed a writ petition before this court on 3.9.2019, wherein this court issued notice on 5.9.2019 and granted ad-interim relief restraining the respondent from proceeding further pursuant to the impugned notice. It was submitted that when the notice came to be served upon the respondent on 9.9.2019, the assessment order dated 29.8.2019, came to be served upon the petitioner. It was submitted that after the objections came to be disposed of, the respondent ought to have given a reasonable time to the petitioner to approach this court. However, the respondent in utmost haste has proceeded further and passed the assessment order. 2. Reliance was placed upon the decision of the Bombay High Court in the case of Asian Paints Limited v. Deputy Commissioner of Income tax, 2008 (296) ITR 90 (BOM.) wherein the court has clarified that if the Assessing Officer does not accept the objections so filed by the petitioner, he shall not proceed further in the matter within a period of four weeks from the date of receipt of service of the said order on objections, on the assessee. It was submitted that the court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He would further submit that, here in the present case, the revenue did not have given sufficient time as directed by the Bombay High Court to avail the appropriate remedy before the Competent Court. In this circumstances, the impugned notice as well as the consequential order of the assessment are without jurisdiction. 8. It was submitted by learned counsel for the writ applicant that the notice impugned is bad in law as the reassessment for the year under consideration was framed under Section 143(3) of the Act and same is sought to be reopened beyond the period of 4 years from the end of the relevant year and there was no any failure on the part of the assessee to disclose truly and fully necessary material facts for the assessment. 9. On the other hand, Mrs. Kalpana Raval, the learned Standing Counsel appearing for the revenue opposed the writ application, contending that the assessee at the stage of previous assessment proceedings, had not submitted an agreement to sell dated 04.08.2012, in support of the claim of deduction made under Section 54B of the Act and therefore, the conditions precedent to avail the benefit of deduction as provided under Section 54B of the Act are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have power to review the earlier formation of belief on the same set of facts and law. 14.We have examined the reasons recorded for reopening of the assessment. A bare perusal of the reasons recorded, reveal that the findings recorded by the AO with regard to non-production of the necessary documents in support of the claim are without any basis and it reflects total non-application of mind to the record. Records indicate that the details with regard to deduction under Section 54B was called for and the assessee had complied the same by furnishing the registered sale deed and agreement of purchase along with bank particulars. The previous assessment order at Annexure - E, page-28 of the compilation of this writ application, shows that during the assessment proceedings, the AO had observed that the assessee had submitted all the details and were examined by him. The AO had discussed the issue of LTCG. The relevant extract i.e. para-4 of the assessment order is reproduced as under: "para-4: Addition on account of Long term capital gain: During the course of assessment proceedings, it is seen that the assessee had claimed exemption of long term capital gain arising out of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empt on the part of the AO to reopen the assessment is nothing but he has changed his opinion. In the previous assessment proceedings, the AO had consciously applied his mind to the relevant facts and material available and framed the assessment and now, on the same set of facts, again, on the different view by the AO to reopen the proceedings would amount to change of opinion. It also appears that at the stage of previous assessment proceedings, the assessee had disclosed all the primary facts for the assessment and based upon the materials the AO did not disallow the deduction to the extent of Rs. 1,85,00,000/-. We take the notice of the fact that revenue has failed to show that which necessary facts were not disclosed by the assessee at the stage of previous assessment proceedings. Therefore, in these circumstances, we are of the view that no new material surfaced during the reassessment proceedings on which the AO could have formed a requisite belief with regard to escape of assessment, especially when the assessee has disclosed all materials fully and truly at the stage of original assessment proceedings. Reference may be made to the case of CIT Vs. Usha International Ltd, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
