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TMI Blog2022 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings. This change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment. In an undated objections to reopening, petitioner has expressly provided that the flat, when purchased by the assessee in auction under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), was one flat comprising of an area of approximately 7500 sq. ft. alongwith four car parking spaces. Petitioner has also provided all evidences to justify that when petitioner purchased the flat, it was one residential unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces" after claiming an exemption under Section 54 of the Income Tax Act, 1961 (the Act) amounting to ₹ 51,57,29,543/-. The return was selected for scrutiny assessment under CASS. The reason for selection of the said return for scrutiny assessment was to examine the claim of exemption from long term capital gains. Petitioner received a notice dated 1st September 2018 under Section 142(1) of the Act seeking statement of capital gains and exemption claimed alongwith evidences supporting the claim of exemption. Petitioner replied and uploaded on 10th September 2018 their forwarding letter, ITR statements and accounts, sale agreements and details regarding one Rishi Gagan Trust. Physical copies were submitted on 11th September 2018. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that petitioner's income chargeable to tax for Assessment Year 2016-2017 has escaped assessment within the meaning of Section 147 of the Act. Petitioner was provided the reasons for reopening by a communication dated 29th June 2021. As it appears from the reasons for reopening, petitioner had sold a residential property at Gulistan, Napeansea Road and purchased a residential property being "Villa Orb" for a consideration of ₹ 56,18,30,000/-. Against the long term capital gains of ₹ 53,25,95,542/-, petitioner claimed deduction under Section 54 of the Act. But from the documents relating to the acquisition of new property being "Villa Orb", it related to six residential flats on the 9th Floor admeasuring 7,500 sq. ft. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of deductions/ exemption under Section 54 of the Act was one of the reason for scrutiny under CASS and petitioner was issued notices and petitioner also provided all details online. Therefore, all the material relied upon by the new Assessing Officer proposing the reopening were available with the Assessing Officer when the assessment order dated 15th December 2018 was passed. 7. Ms. Bhandari also relied upon various judgments of this Court to submit that the reason to believe that income chargeable to tax had escaped assessment within four years from the end of the relevant assessment year has to arise not on account of mere change of opinion but on the basis of some tangible material. Ms. Bhandari submitted - can respondent take recour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income Tax 2 (1) (2014) 44 taxmann.com 304 (Bombay)]. 9. There can be no doubt in the facts of the present case that the issue of deduction under Section 54 of the Act was a subject matter of consideration by the Assessing Officer during the assessment proceedings leading to passing of the assessment order dated 15th December 2018. It would, therefore, follow that the reopening of the assessment by impugned notice dated 11th March 2021 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings. This change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment. 10. A point came to light as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to acquire a residential house and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be taken to have been satisfied" . Even during the course of submissions today, Mr. Narayanan did not disagree with the proposition submitted by petitioner. 13. In the circumstances, petition is allowed in terms of prayer clause - (a), which reads as under : (a) That this Hon'ble Court may be pleased to issue under Article 226 of the Constitution of India an appropriate direction, order or a writ, including a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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