9911796707
TMI Blog2024 (2) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 148A(b) also relates to the said flat and entirely contradictory view is taken in the impugned order that the asset sold was short term capital asset and gain arising on transfer of the said flat is short term capital gain. Thus the reopening of the assessment is purely on the basis of change of opinion of the AO from that held earlier during the course of assessment proceedings. This change of opinion does not constitute justification for assuming that income chargeable to tax has escaped assessment. Decided in favour of assessee. - K. R. SHRIRAM AND Dr. NEELA GOKHALE, JJ. For the Petitioner : Mr. K. Gopal a/w Ms Neha Paranjpe and Mr. Akhilesh Deshmukh. For the Respondents : Mr. Suresh Kumar. ORAL JUDGMENT (PER K. R. SHRIRAM J.) : 1. Rule. Rule made returnable forthwith and heard. As the pleadings are completed, this court, by consent of the parties has taken up the matter for final hearing. 2. Petitioner, an individual, filed return of income on 28th August 2018 for AY-2018-19 declaring total income of Rs. 26,26,220/-. Petitioner, thereafter, received a notice dated 28th September 2019 issued under Section 143(2) of the Income Tax Act 1961 (the Act) stating that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered date of acquisition of property at 28.05.2010 and computed net long term capital loss of Rs.33,793/-. In view of the same, you are requested to explain as to why the capital gain on said sale of property should not be computed as under Sale consideration of flat (50% ownership) Rs. 1,05,00,000/- Less :- Purchase consideration of flat (50% ownership) Rs. 71,95,625/- Short terms Capital Gain = 33,04,375/- taxable @ 30%. 5. Petitioner replied to the said notice dated 22nd March 2022 objecting to the reopening vide petitioner s Chartered Accountant's letter dated 28th March 2022. Notwithstanding, petitioner s objections, the order dated 31st March 2022 under Section 148A(d) of the Act has been passed and notice also dated 31st March 2022 issued under Section 148 of the Act, holding that the asset sold was short term capital asset and gain arising on the transfer of such asset is short term capital gain. It is this order and the notice both dated 31st March 2022 which are impugned in this petition. 6. Various grounds have been raised but one ground is that there has been change of opinion. Mr. Gopal submitted that this court has taken a view in Siemens Financial Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceeding even where he is satisfied then it would be impossible for the Assessing Officer to complete all the assessments which are required to be scrutinized by him under Section 143(3) of the Act. Moreover, one must not forget that the manner in which an assessment order is to be drafted is the sole domain of the Assessing Officer and it is not open to an assessee to insist that the assessment order must record all the questions raised and the satisfaction in respect thereof of the Assessing Officer. The only requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act, during the original assessment proceedings. There can be no doubt in the present facts as evidenced by a letter dated 8 September 2012 the very issue of taxability of sale of shares under the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew and power to re-assess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain pre-condition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1-4-1989 , Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987 , Parliament not only deleted the words reason to believe but also inserted the word opinion in section 147 of the Act. However, on receipt of representations from the Companies against omission of the words reason to believe , Parliament re-introduced the said expression and deleted the word opinion on the ground that it would vest arbitrary powers in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
