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TMI Blog2023 (9) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner is an individual, who filed return of income on 13th January 2014 for Assessment Year 2013-14 declaring total income of Rs. 2,32,81,270/-. Petitioner's case was selected for scrutiny and Petitioner received notice under section 143(2) of the Income Tax Act, 1961 ("the Act"). 3. During Financial Year 2012-13 corresponding to Assessment Year 2013-14, Petitioner along with other co-owners had entered into a Development Agreement on 15th June 2012 with one Sai Ashray Developers ("Sai Ashray") for developing the land situated at Chikhloli, Ambernath. During the assessment proceedings under Section 143(3) of the Act, Petitioner, vide letter dated 17th March 2016, had filed a copy of the Development Agreement before the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It is Petitioner's case that since the notice under Section 148 of the Act has been issued after the expiry of four years from the end of the relevant assessment year, as provided in Section 147 of the Act, re-opening of the assessment was not permissible unless there was failure on the part of Petitioner to fully and truly disclose material facts required for assessment. Mr. Jain submitted that the reasons to believe does not indicate that there was any failure on the part of Petitioner to truly and fully disclose material facts. 7. Mr. Suresh Kumar submitted that Petitioner has filed original return of income treating the land in question as 'stock in trade' in the books of accounts and hence, not a 'capital asset' within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crores in the Development Agreement. Therefore, Petitioner should have offered capital gain during the Assessment Year 2013-14. 9. At the outset, we have to note that during the assessment proceedings a query had been raised by the AO and Petitioner had submitted copy of agreement relating to joint development at Chikhloli vide its Chartered Account's letter dated 17th March 2016. By a further undated letter, Petitioner, after referring to the ongoing scrutiny assessment proceedings and referring to the query that was raised during the assessment proceedings as to why the Development Agreement entered into by Petitioner with Sai Ashray should not be treated as 'transfer of land' and taxed accordingly, explained in detail as to why there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had also relied upon CBDT Circular No. 4/2007 dated 15 June 2007. (The reasons for reopening furnished by the Assessing Officer also places reliance upon CBDT Circular dated 15 June 2007). It would therefore, be noticed that the very ground on which the notice dated 28 March 2013 seeks to reopen the assessment for assessment year 2008-09 was considered by the Assessing Officer while originally passing assessment order dated 12 October 2010. This by itself demonstrates the fact that notice dated 28 March 2013 under Section 148 of the Act seeking to reopen assessment for A.Y. 2008-09 is based on mere change of opinion. However, according to Mr. Chhotaray, learned Counsel for the revenue the aforesaid issue now raised has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e head capital gain or the head profits and gains from business was a subject matter of consideration by the Assessing Officer during the original assessment proceedings leading to an order dated 12 October 2010. It would therefore, follow that the reopening of the assessment by impugned notice dated 28 March 2013 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment" 10. This would also indicate that there was no failure to disclose any material fact. On that ground alone the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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