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TMI Blog2018 (3) TMI 1997X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer passed the order of assessment under section 143(3) of the Act on 30.03.2015 assessing petitioner's income at Rs. 3.17 crores (rounded off). To reopen such assessment, the Assessing Officer issued impugned notice. In order to do so, he had recorded following reasons: "On verification of the assessment records, it was noticed from the sale deed filed by the assessee had purchased 68,696 sq.mts of agricultural land at block no. 201, revenue survey no. 140/1. Parab Village, Kamrej Taluka of Surat District jointly with Shri Lavjibhai Dungarbhai Daliya (PAN AHLPSO104M) from Shri Shivabhai Ramjibhai Savani (PAN: AHLPS0104M) and 3 others for which agreement of sale was registered with Sub-registrar office vide entry no. 1461 of Book No. 1 on 01.03.2011 and sale deed was made on 29.02.2012 for consideration of Rs. 1,09,91,360/-. The possession of the land was given on 01.03.2011 for both the purchases and the same was converted as non-agriculture land with effect from 07.06.2011. The assessee's share out of the above 68.696 sq.mts. Land was Rs. 34348 mtrs (50% of 68,696 sq.mtrs) valuing to Rs. 54,95,680/- (50% of Rs. 1,09,91,360/-). However, it was noticed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of short term capital gain of Rs. 50,95,868/-. Hence, I have reason to believe that the income of the assessee has escaped assessment to the extent of Rs. 1,05,91,548/- for the A.Y. 2011-12 because of the failure on part of the assessee to disclose his income fully and truly. Therefore, approval for issue of notice u/s. 148 of the Act may kindly be accorded." 3. The petitioner raised objections to the notice of reopening under a communication dated 06.12.2017. Such objections were rejected by the Assessing Officer by an order dated 07.12.2017. Hence, this petition. 4. Appearing for the petitioner, counsel Mr. J.P.Shah has taken us through the reasons recorded by the Assessing Officer and pointed out that the Assessing Officer had cited two reasons. One was the petitioner's purchase of agriculture land in Village Parab, Tal. Kamrej. According to the Assessing Officer, such purchase was not reflected in the assessee's balance-sheet or profit and loss account and that therefore, the petitioner's share of the purchase value, the Assessing Officer desired to bring to tax with the aid of Section 69 of the Income Tax Act, 1961. Second reason for reopening the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of AIR is attached with this notice. On perusal of balance sheet the same is not reflected in your books of accounts. In the light of above mentioned facts you are required to show cause as to why investment made for purchase of this immovable properties by amounting to Rs. 11095680/-) 50% of Rs. 10991360 + Rs. 5600000) should not be treated as unexplained investment u/s. 69 of the I.T.Act and added back to total income." 8. In response to such notice, the petitioner had replied under a communication dated 13.03.2015 as under: "(2) Regarding your query about the purchase of immovable property solely based upon the AIR information, I have to explain as under:- i) The immovable property of Rs. 56 lacs as stated by you refers to my residential Flat at 1002, Surya Flats, city Light, Surat, which has duly been shown in my books of accounts and for that I have already furnished my balance sheet for the year ended 31st March, 2012. On perusal of the ledger account of the said residential flat and the copy of registered purchase deed attached herewith, you will certainly find the detailed breakup cost of purchase of the flats i.e. actual purchase consideration, stamp duty exps., re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the original assessment. He would be stated to have formed an opinion whether such opinion was reflected in his final order of assessment or not. 10. Division Bench judgement of this Court in case of Gujarat Power Corporation Ltd vs. Assistant Commissioner of Income Tax reported in 350 ITR 266, the Court had held and observed as under: "42. Bearing in mind these conflicting interests, if we revert back to central issue in debate, it can hardly be disputed that once the Assessing Officer notices a certain claim made by the assessee in the return filed, has some doubt about eligibility of such a claim and therefore, raises queries, extracts response from the assessee, thereafter in what manner such claim should be treated in the final order of assessment, is an issue on which the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the year you have shown Short Term Capital Gain of Rs. 1,40,42,932/- on sale of two agriculture land, which were purchased by you in A.Y. 2008-09. Details of the same are as under: 1. Document No. 571/2011 dated 22.12.2010, land description is R.S. No. 37, Block No. 44, Moje Kosamada, Sub Dist. Kamrej, Dist. Surat. Sale consideration received by you (as per deed) Rs. 5635768/- Market value (as per stamp duty paid (386910*100/4.9) Rs. 7896122/- Difference of sale consideration received and market value Rs. 2260354/- 2. Document No. 573/2011 dated 22.12.2010 land description in R.S.No. 45, Block No. 46, Moje Kosmada, Sub District Kamrej, Dist. Surat. Sale consideration received by you (as per deed) Rs. 9302164/- Market value (as per stamp duty paid (638610*100/4.9) Rs. 13032857/- Difference of sale consideration received and market value Rs. 3730693/- You have sold these properties less than market value (As per stamp valuation authority). Thus section 50C of the I.T.Act is applicable in your case and difference amount of Market value and actual sale consideration received by you as mentioned in sale deed is taxable in your hand. In this connection you are requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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