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TMI Blog2022 (1) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... this account and allow carry forward of loss so computed under the head 'Capital Gain' to the assessee without considering the merits of the case?". (2) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the fact that the A.O. has rightly taken the share of the assessee at 1/77th of the said property Village Kanjur, Bhandup, Kurla based on Consent terms between Plaintiff and Defendants No. 1 to 8, 48 to 50A and 75 to 78 in civil suit No. 2757 of 2006 filed by Madhavji Jeyram Kotak and others in Bombay High Court?" (3) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the fact that assessee failed to furnish copy of purchase agreement in respect of said property at Village Kanjur, Bhandup, Kurla". 3. Assessee filed a cross objection in CO number 12/MUM/2021 raising following grounds wherein challenge was made to reopening of the assessment:- Reopening of assessment is bad in law 1. The reopening of assessment vide notice u/s. 148 dated 31/3/2016 was issued from wrong jurisdictional officer. Therefore, the notice issued u/s. 148 is bad in law, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns recorded for reopening of assessment on 19/9/2016 and subsequently notices u/s. 143(2) and 142(1) of The Act were issued on 13/10/2016. Subsequently, at the request of assessee dated 10/11/2016, case was transferred to Mumbai as assessee had permanently shifted to Navi Mumbai. 3. Issue in appeal shows that assessee has disclosed long-term capital loss of Rs. 35,561,453/- which assessee has incurred on account of transfer of rights, title and interest in an ancestral property located in Mumbai wherein assessee received share from his ancestor. Assessee computed the capital loss as under:- Sr No Particulars Amount for all 7 coowners [ In Rs ] Amount pertaining to assessee [In Rs.] 1 Being sale consideration received for 41% right, title, share any interest in the property along with six other co- owners 17,50,00,000 2,50,00,000 2 The fair market value of the property as on 1 April 1981 is Rs. 72,840,233/- which is indexed for assessment year 2009 - 10 at Rs. 423,930,171/- for seven co- owners including the assessee 42,39,30,171 6,05,61,453 3 Long-term capital loss 3,55,61,453 4. During the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal income at Rs. 1,91,94,897/-. 6. Thus, during assessment, only dispute between assessee and ld. AO was that whether assessee should get deduction of cost of acquisition considering 1/77th shares [ld. AO's version] or 1/7th [Assessee's version]. Ld. AO computed cost of acquisition treating assessee's shares at 1/77th whereas the claim of the assessee is that cost of acquisition with respect to 41 % share in the property is owned by 7 persons including assessee, therefore assessee must be granted deduction of cost of acquisition of 1/7th shares of that cost and not 1/77th as determined by ld. AO. 7. Assessee, aggrieved with the order of the learned assessing officer, preferred an appeal before the Commissioner Of Income Tax (Appeals). The contentions of the assessee were that the reopening of the assessment is bad in law as the notice for reopening of assessment u/s. 148 of the Act has been issued by a non-jurisdictional assessing officer from Gandhidham whereas the jurisdiction of assessee lies at Mumbai. Consequently, notice u/s. 143(2) was also not valid. On the merits of the case, assessee argued that share of the assessee is only 1/7th and not 1/77th as conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation authority of India [AADHAR] card where the address of the assessee is at Mumbai. He also referred to the passport issued to the assessee where the address of the assessee is also mentioned at Navi Mumbai. He further stated that on 14/10/2015 a new permanent card was issued to the assessee, where also the address of assessee is mentioned at Navi Mumbai. He therefore submitted that notice u/s. 148 of the income tax act issued to the assessee by The Income Tax Officer Gandhidham on 31-03-2016 is bad in law as issued by non jurisdictional A.O. He stated that correct address of the assessee is at Navi Mumbai and PAN AEDPT9529A is issued at Navi Mumbai address. Therefore, the officer at Gandhidham did not have any jurisdiction over the assessee. He further referred to letter dated 12/9/2016 addressed to ld. AO Gandhidham, wherein para number 8 assessee has submitted that current jurisdiction of the assessee is at Mumbai. In response to that assessee requested Ld. AO Gandhidham to transfer his case to applicable ward in Mumbai. He further referred to notice issued u/s. 143(2) of the act on 13/10/2016 by ITO Gandhidham wherein assessee was asked to give the correct address and jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dor's number 1 - 7 are the only legal heirs and legal representative of Mr. Shivji Raghavji who had 41% share in the said property. He therefore stated that the 41% share of the total sale consideration of Rs. 17.50 with respect to the seven co-owners gives a sale consideration of Rs. 2.50 crores to each of the co-owner including assessee. Furthermore, fair market value of property as on 1/4/1981 was Rs. 7,28,40,233 which was indexed and divided been between the seven Cowners, the share of the assessee comes to Rs. 6,05,61,453 which resulted into a long-term capital loss of Rs. 35,561,453/-. He therefore submitted that the share of the appellant in the above property is only 1/7th share and not 1/77th share as claimed by the learned assessing officer. He further referred to para 7 of the learned CIT - A wherein he has directed the learned assessing officer to consider the assessee's share of 1/7th. Therefore according to him even on the merits the addition made by the learned assessing officer does not sustain which has been rightly deleted by the learned CIT - A. 15. The learned departmental representative vehemently objected to the ground taken by assessee about notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anged by the assessee on 15 September 2015. Therefore from the addressee it was apparent that the learned assessing officer who issuing the notice u/s. 147 of the act does not have jurisdiction over that assessee. Despite this, the learned ITO ward 2 Gandhidham issued the notice. The assessee also put to the kind attention of the ITO Ward 2 Gandhidham vide letter dated 12 September 2016 that the jurisdiction of the assessee is at Mumbai and therefore his case may be transferred to the respective officer. Consequent to the request of the assessee on 17/11/2016 The Income Tax Officer 28(3)(4) Navi Mumbai issued notice u/s. 142(1) read with Section 129 of The Income Tax Act. Thus, it is clear that the ITO ward 2 Gandhidham did not have jurisdiction to issue notice u/s. 148 of the Act. Hence looking to the facts and circumstances of the case it is apparent that the notice u/s. 148 of the act is issued by the non-jurisdictional assessing officer and therefore not sustainable. 21. More so for the reason that in the reasons for reopening of the assessment, the learned assessing officer has also mentioned the changed address of the assessee and despite this fact he did not apply his mind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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