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TMI Blog2022 (4) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... at by way of WP.No.35606 of 2002, the respondent also sought to quash the similar notice dated 16.08.2002 issued by the appellant under section 148 of the Act, for the assessment year 1997-98. Both the writ petitions were heard together and a common order dated 31.07.2017 was passed by the learned Judge, thereby allowing the writ petitions and setting aside the notices dated 16.08.2002 issued by the appellant. 3.For better appreciation, the relevant passage of the order dated 31.07.2017 passed in WP.Nos.35606 and 35607 of 2002 is extracted below: "13.On a careful perusal of the original file including the note file, it is evidently clear that there is no factual difference for reopening the assessment as proposed in the first notice and as presently proposed in the impugned notices. The only difference being the language, as the officers are different. The same documents which formed the basis for reasons for reopening and issuance of notice dated 25.01.2001 is identical to that of the reasons, which are set out for the issuance of the impugned notice. Further, the petitioner was kept completely in the dark about the closing of the proceedings on technical grounds, stated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.450 of 2019), we have passed separate order today and issued notice to the Respondent/Assessee to ascertain the difference of facts in that Assessment Year, if any. We thus do not find merit in the present Writ Appeal filed by the Revenue. Hence, this Writ Appeal is dismissed. No order as to costs." 5.A separate order dated 22.02.2019 passed in WA.No.450 of 2019 arising from WP.No.35607 of 2002 relating to the assessment year 1998-99 is quoted below for ready reference: "Learned counsel for the Revenue submitted that for Assessment Years 1998-1999, the impugned notice under section 148 of the Income Tax Act, 1961 was issued by the officer Mr.Abanikantha Nayak, Deputy Commissioner of Income Tax, Company Circle II(2), Chennai 600 002, after recording the reasons only on 16.08.2002 and therefore the notice under section 148 of the Act, for the assessment years 1998-1999 could not have been quashed by the learned Single Judge, while quashing the reassessment notice for Assessment Year 1997-98, while passing order on 31.07.2017 in WP.Nos.35606/2017 and 35607/2017. 2.We have already upheld the order of the learned Single Judge and dismissed the W.A.No.449 of 2019 today. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they filed WP.No.35607 of 2002 challenging the said notice dated 16.08.2002 along with WP.No.35606 of 2002 for the assessment year 1997-98. Both the writ petitions were allowed and the reassessment notices dated 16.08.2002 were set aside by the learned Judge, by the order impugned in this writ appeal. 8.The learned Standing counsel appearing for the appellant submitted that the land sold by the respondent was not agricultural land and the same was to be assessed under the head 'capital gains' and hence, the assessment for the year 1998-99 originally completed without making any addition, was sought to be reopened by issuing notice dated 16.08.2002 under section 148 of the Act; however, without considering the said vital point, the learned Judge erred in setting aside the same, stating that there was no fresh material suggesting escapement of the income by the order impugned herein. It is also submitted that the dropping of the earlier notice dated 25.01.2001 on technical reasons and issuance of subsequent notice dated 16.08.2002 had occurred only in respect of the assessment year 1997-98 and the said reassessment notice was set aside by the learned Judge in WP.No.35606 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for reopening recorded by the assessing officer on 16.08.2002, for the assessment year 1998-99, which reads as under: "REASONS FOR REOPENING OF THE ASSESSMENT U/S 147 OF THE IT ACT 1. There was a sale agreement between the assessee and M/s.Shoreline Developers (P) Ltd. on 4.7.96, the assessee agreeing to sell 9.99 acres of land at Muttukadu for a consideration of Rs. 3.50 crores. This sale agreement though specified that this document shall be registered within 90 days, there are no evidences to show that there were any sale deed registered by both the vendor and the purchaser. The records also do not show application for certificate under sec 230A of the Income Tax Act, 1961 at that time. The assessee had not incurred any expenditure by way of agricultural expenditure in the last five years, as seen from the details filed. The parent document in the lands of the assessee indicates that because of poor yields these lands were sold to the assessee and there were a limited numbers of unyielding coconut trees. The VAO certificates indicate that there were coconut trees and casuarina trees. The assessee did not pay any agricultural income tax also on these lands. In short t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be completed within 90 days from this date subject to the purchaser expressing his readiness to pay the balance sale consideration the "?time"? being the essence of this agreement. The amounts received of Rs. 3.50 crores between 4.7.96 to 23.10.97 had been reflected in the account books of the assessee, ledger heads "advance from M/s.Shoreline Developers (P) Ltd".? The assessee had filed a letter dated 21.3.2001 stating that the assessee had handed over the possession of their land at Muttukadu to Mr.Rajkumar Sethupathi of M/s.Shoreline Developers (P) on 23.10.97 the date of last instalment received from him. The assessee did not speak about the sale of his agricultural land in the return of income furnished for the assessment year 1997-98. However, in asst. year 1998-99, the assessee had offered as profit 1.75 crore and claimed exemption being agricultural income. Incidentally, according to the statement of the assessee the entire sales transaction was over by 23.10.97, and if so, the admission by way of profit of only 1.75 crore out of the sale price of Rs. 3.50 crores appears to be furnishing of inaccurate particulars and appears to be a distorted version of sale of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed further. 14.We find some bona fide in the submissions so made on the side of the appellant. On a perusal of the order passed by the learned Judge, it could be seen that there was a mention only about the notice dated 25.01.2001 and subsequent notice dated 16.08.2002 relating to the assessment year 1997-98 and the same were set aside, along with the notice issued under section 148 for the assessment year 1998-99, by order 31.07.2017. The Co-ordinate Bench affirmed the order of the learned Judge only in respect of the assessment year 1997-98 in WA.No.449 of 2019 on 22.02.2019. More over, what was challenged in the writ petition is only the notice issued under section 148 of the Act. Therefore, taking note of the reasons recorded by the assessing officer coupled with the submissions made by the learned counsel for the appellant, we set aside the order of the learned Judge and remand the matter to the respondent for passing appropriate orders. Since the respondent / assessee is now, in possession of the reasons recorded by the assessing officer, it is open to them to file its objections within a period of two weeks from the date of receipt of a copy of this order. Thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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