9911796707
TMI Blog2024 (3) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... e of loan cannot be added to the purchase value and therefore, there short term capital gain has been worked less and excess claim has been made Admittedly, the reopening has been done beyond the period of four years from the end of the relevant assessment year and since original assessment was completed u/s. 143(3), therefore, limitation provided in proviso to Section 147 has to be strictly adhered to. The permissible condition for reopening the assessment beyond the period of four years is that there should be a failure on the part of the assessee to file the return of income or failure to disclose fully and truly all material facts necessary for assessment. There is neither failure on part of the assessee to file return of income nor failure to disclose wholly and truly all material facts, nor there is any material or information on record to show that there is failure on the part of the assessee. In fact assessee has made full disclosure in the return of income and also before the AO during the course of assessment proceedings. Once these material facts were there on the record, AO cannot reopen the case beyond the period of four years without fulfilling the conditions laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee came to know that the ld. CIT (A) has confirmed the disallowance made by the ld. AO. No physical order was served by the ld. CIT (A) and later on only she came to know that the order was sent by mail on 21/03/2023 which went into spam folder. Thus, due to this bonafide omission, appeal could not be filed in time leading to delay of 146 days. On perusal of the aforesaid averment made in the affidavit, we find that there were no latches on the part of the assessee as the Accountant to whom assessee was depending upon could not track the order of the ld. CIT (A) and assessee was not aware of any such order being passed and sent through mail. Accordingly, the appeal of condonation of delay of 146 days is condoned. 3. The brief facts qua the issue raised is that assessee is an individual who had filed its return of income on 14/09/2011 declaring total income of Rs. 20,91,879/-. Later on, the return was revised on 17/10/2012 at Rs. 9,76,290/-. Thereafter, assessee s case was selected for scrutiny and assessment was passed u/s. 143(3) vide order dated 31/03/2013 determining total income of Rs. 9,76,292/-. Thereafter, assessee s case has been reopened u/s. 147. The issuance of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongwith interest. It was only after verification of all these documents, ld. AO has accepted the computation of capital gain in his order passed under Section 143(3). Subsequently, notice u/s. 154 dated 12/06/2017 was issued by the ld. AO to rectify the claim of short term capital loss by proposing to disallow the claim of interest and loan processing charges. The assessee vide letter dated 15/06/2017 objected to said rectification and thereafter, ld. AO did not pass any rectification. Further, assessee submitted that once this issue has been examined during the course of original assessment proceedings and there is no failure on the part of the assessee to disclose fully and truly all material facts declared in the return of income and documents submitted at the time of assessment, no reopening can be done after the expiry of four years from the end of the assessment year as here in this case reopening has been done beyond the period of four years. In support, various decisions were also referred and relied upon. Assessee also challenged reopening on the ground of change of opinion and in support various decisions were relied upon. 5. However, the ld. AO rejected objections statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed the action of the ld. AO holding that cost claimed is neither through transfer of asset nor part of cost of acquisition/improvements. 7. We have heard both the parties at length and also perused material placed on record. It has been pointed out before us that assessee during the course of assessment proceedings has given detailed working of short term capital gain on sale of flats and in the computation of short term capital gain, assessee has also taken loan processing charges and loan repayment charges, interest payment etc., before the ld. AO. In response to specific query raised, assessee had given the details vide letter dated 16/12/2013 and again on 26/12/2013 alongwith statement of computation of the short term capital gain on the sale of property which was in the co-ownership of her husband Troy Caeiro. After examining these details and computation of short term capital gain, ld. AO has accepted the claim of the assessee and the short term capital gain disclosed by the assessee was accepted. From the perusal of the reasons recorded as noted above, it is seen that nowhere there is any reference of any information or material coming on record and it is only from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
