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TMI Blog2023 (11) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not shown any income from capital gain which is an incorrect statement and non-application of mind by the Assessing Officer while recording the reasons for reopening the assessment for the Assessment Year 2008-09. Also as seen from Para 3 of the assessment order, A.O. himself admits that the Return of Income filed by the assessee wherein the computation of capital loss offered by the assessee. This is self-contradictory to the reasons recorded by the A.O. It is thereafter, the Ld. A.O. referred the matter to DVO to ascertain the Fair Market Value of the immovable property as on 01-04-1981. Thus when the reasons recorded itself is found to be incorrect and there is no failure on the part of the assessee in disclosing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was requested to furnish necessary details and documents related to the aforesaid transactions vide non-statutory letter dated 23.03.2015. The assessee has not furnished any documentary evidence till date. The assessee not shown any income from Capital Gain from the said transaction in his Return of Income filed for A.Y. 2008-09 which is treated as income escaped from assessment. 2.1. In response to the notice, the assessee filed vide letter dated 16-12-2015 copy of the original return, details of sale of immovable property, computation of capital gain and details of family members. The Ld. A.O issued a show cause notice dated 17-03- 2016 that the assessee claimed Fair Market Value as on 01-04- 1981 at Rs. 32,37,000/- and work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon Gujarat High Court Judgments in the case of (a) Sagar Enterprise Vs. ACIT [2002] 257 ITR 335 (Guj.) (b) Vijay Harichandra Patel Vs. ITO reported in 400 ITR 167 (Guj.) (c) Pravinbilai Amaratlal Kiri Vs. DCIT in TC No. 12513 of 2017 3.1. Even on merits of the case, the assessee filed its submission before Ld. CIT(A). After considering the same, the Ld. CIT(A) upheld that the reopening of assessment is good in law, following Ahmedabad Bench Tribunal s decision in the case of M/s. Navratna Organisers Dev. (P) Ltd. in ITA No. 2143/Ahd/2009 dated 27-08- 2014. However on merits, the Ld. CIT(A) held that the A.O. has no power to refer the matter to District Valuation Officer u/s. 55A to determine the Fair Market Value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. Thakkar appearing for the assessee submitted before us a Paper Book consisting of the original Return of Income, Valuation Report by DVO, Remand Report, Rejoinder to Remand Report and other details. Ld. Counsel further submitted that the reasons recorded by the Assessing Officer itself is invalid in law. Since the Ld. A.O. recorded that the assessee has not disclosed any income from capital gain on sale of the immovable property in the Return of Income filed for the Assessment Year 2008-09. Therefore treated the income has escaped from assessment. Whereas in Para 3 of the assessment order, the Ld. A.O. admits the original Return of Income filed by the assessee, wherein computation of capital loss is reflected. Thus the very basic recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cost inflation index as on 01-04-1981. So without verifying the original Return of Income, the Ld. A.O. has recorded the reasons that the assessee has not shown any income from capital gain which is an incorrect statement and non-application of mind by the Assessing Officer while recording the reasons for reopening the assessment for the Assessment Year 2008-09. Further it is seen from Para 3 of the assessment order, the Ld. A.O. himself admits that the Return of Income filed by the assessee wherein the computation of capital loss offered by the assessee. This is self-contradictory to the reasons recorded by the A.O. It is thereafter, the Ld. A.O. referred the matter to DVO to ascertain the Fair Market Value of the immovable property as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that earlier, pursuant to notice under section 148 of the Act, the petitioner had, in fact, filed return on income disclosing the sale of such immovable property, and the Assessing Officer after duly applying his mind to the issue had accepted the return of income. Considering the fact that a return of income had been filed disclosing sale of the immovable property, the very foundation on which the reopening is based in the reasons recorded by the Assessing Officer for reopening the assessment, collapses. In the light of the fact that very basis of reopening no longer survives, the assumption of jurisdiction under section 147 of the Act by the Assessing Officer by issuing notice under section 148 of the Act is without authority of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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