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TMI Blog2024 (7) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. In view of the foregoing reasons, when the petitioner of Special Civil Application No. 22046 of 2019 has disclosed fully and truly all the material facts during the course of the original assessment, there was a change of opinion for reopening of the assessment by issuing the impugned notice u/s 148 of the Act. Therefore, the reliance placed on behalf of the respondent on the decision of Yogendrakumar Gupta [ 2014 (7) TMI 391 - GUJARAT HIGH COURT] would also not apply as the allegation in the said case pertains to the transaction with shell companies which stands on a different footing. The impugned notice under Section 148 of the Act therefore cannot be sustained. The petition deserves to be allowed. Reliance on benefit of other co-owners enjoyed - Different yardstick cannot be applied for treating the notice under Section 148 of the Act for reopening in view of the decision relied on by the petitioner in case of Kumararani Smt. Meenakshi Achi [ 2006 (10) TMI 123 - MADRAS HIGH COURT] wherein it is held that the assessee who is also a co-owner of the property, is entitled to the benefit enjoyed by the other co-owners, whose valuation of the same property, at the same rate as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioner on sale of three properties which includes the property situated at Village Abrama being Revenue Survey No. 4A, 14 and 10-A. 3.4 The case of the petitioner was selected for scrutiny assessment and notice under Section 143 (3) dated 12th August, 2013 was issued followed by notice under Section 142 (1) of the Act dated 03rd April, 2014 asking the petitioner to furnish the information called for including copy of trading and P L account along with balance-sheet, computation of income and audit report for the A.Y. 2011-12 and 2012-13. 3.5 The petitioner filed detailed reply dated 10th May, 2014 providing requisite details including the registered sale deeds and purchase deeds of the property sold under the year under consideration on which short term capital gain was offered by the petitioner for the A.Y. 2012-13 qua 12.5% share of the petitioner. The petitioner also pointed out that against the sale of the land, petitioner claimed exemption under Section 54B of the Act by purchasing agricultural land. Copies of purchase deeds were also provided by the petitioner along with bank book showing payment made for purchase of the land. 3.6 The Assessing Officer thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the AO: In this case, information has been received from the ITO, Ward 3(3)(2), Surat vide letter No. SRT/ITO/Wd 3(3) (2)/Information/50C/75/2015-16, dtd. 22.04.2015. As per the information, during the year madhuriben rajendrabhai patel ( The assessee ) alongwith other five (06 sellers in all) Co-owners had sold immovable property situated at R.S. No. 4/A, Block No. 10/A, Moje Abrama, Kamrej Surat on 06.02.2012 vide registration no KMJ/766/2012 by executing a sale deed for document value of Rs. 1,42,17.840/- and stamp duty paid of Rs. 18,44,750/-. The market value of property works out as per stamp duty paid by assessee comes to Rs. 3,76,46,896/- As such, there is a difference of Rs. 2,34,29, 056/- between the sale consideration and the fair market value and accordingly the provisions of 50C apply in the hands of the assessee. 3. Analysis of information collected/ received : On verification from the system, it has been noticed that the assessee has filed return of income for the A.Y. 2012-13 but has not shown the true and proper capital gains as income, which has escaped assessment. Therefore, there is reason to believe that the assessee has not shown the correct income for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 22045 of 2019 is preferred by the co-owner whose case was also reopened by the notice under Section 148 dated 30th March, 2019 on the same reasons. The only difference in the case of the petitioner of Special Civil Application No. of 2019 is that the assessment order under Section 143 (3) of the Act after scrutiny was not passed but the return of income filed by the petitioner was accepted under Section 143(1) of the Act. The petitioner was also co-owner of the subject property having 12.5% share therein and the difference in the jantri value and the sale consideration received by the petitioner was worked out of Rs. 23,44,443/- by the respondent Assessing Officer. 4. Learned advocate Mr. Manish Shah for the petitioner submitted that during the course of scrutiny assessment of the petitioner in Special Civil Application No. 22046 of 2019, all details with regard to the transaction of sale of subject property was furnished before the Assessing Officer. It was pointed out that difference of jantri value pertains to Block No. 9 and not to Block No. 10 and therefore, the Assessing Officer has specifically considered the applicability of Section 50C of the Act in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land in question has actual been transferred by agreement to sell dated 30th September, 2010 but the conveyance deed was registered on 06th February, 2012 and the land was sold at jantri rate of Rs. 03,098/- prevailing at the time of execution of the agreement to sell dated 30th September, 2010 and later on the possession was handed over by possession deed dated 31st March, 2011. It was, therefore, submitted that the land has already been transferred in the A.Y. 2011-12 but the sale deed was registered in the A.Y. 2012-13, therefore capital gain was offered by the petitioner in A.Y. 2012-13. 4.4 Learned advocate, in support of his submissions, referred to and relied upon the applications dated 13th June, 2011 and 18th June, 2011 filed by the petitioner with the office of Deputy Collector for to find out the jantri value prevailing on the date of transfer of the land on 31st March, 2011 and the reply dated 12th August, 2011 of the Deputy Collector to the effect that jantri value was Rs. 03,098/-. 4.5 It was, therefore, submitted that the above facts were considered by the Assessing Officer during the original course of assessment proceedings and the capital gain offered by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 226 of the Constitution of India more particularly when the Assessing Officer during the course of the original assessment has not examined difference in valuation of jantri and value and sale consideration as per the sale deed. 5.2 It was further submitted that the petitioner claimed exemption under Section 54B of the Act in respect of the subject land and therefore, the Assessing Officer would not have inquired into the computation of the long term capital gain and therefore, there is no question of application of mind by the Assessing Officer during the original assessment and change of opinion for reopening of the assessment. 5.3 Learned senior standing counsel for the respondent relied on the decision in case of CIT v. Usha International Ltd. [(2012) 348 ITR 485] to submit that when the Assessing Officer did not examine a particular subject matter, entry or claim/deduction and therefore, had not formed any opinion and accordingly it must be presumed that he must have formed an opinion. It would be presumed that he must have formed an opinion as there cannot be a deemed formation of opinion even when the subject matter is not examined. 5.4 It was, therefore, subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. Having heard learned advocates for the respective parties and having perused the facts of the case, it is not in dispute that the petitioners are co-owners of the land in question situated at Block No. 10A which is the subject matter of reopening of the assessment proceedings for A.Y. 2012-13 on the basis that there is difference in the jantri value and the sale consideration received by the petitioner. However, it also emerges from the record that the issue with regard to valuation of the and in question was scrutinised during the course of the assessment proceedings in case of petitioner of Special Civil Application No. 22046 of 2019. 6.1 It is also a matter of fact that valuation made by the stamp valuation authority cannot be considered as a tangible material as held by this Court in case of Munir Ismail Voraji v. Income Tax Officer [(2018) 404 ITR 696] wherein it is held that report from the DVO in respect of the valuation in case of co-owner is not a tangible material to form belief of escapement of income without anything more on record. 6.2 Reliance placed on behalf of the respondent on the decision rendered in case of Surat District Co-op Milk Producers Union Ltd. (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with shell companies which stands on a different footing. 8. In view of the foregoing reasons, the impugned notice under Section 148 of the Act therefore cannot be sustained. The petition deserves to be allowed and the impugned notice dated 31st March, 2019 issued under Section 148 of the Act for reopening of the assessment for A.Y. 2012-13 and the order dated 13th November, 2019 rejecting the objections are accordingly quashed and set aside. 9. So far as Special Civil Application No. 22045 of 2019 is concerned, facts being identical, different yardstick cannot be applied for treating the notice under Section 148 of the Act for reopening in view of the decision relied on by the petitioner in case of Kumararani Smt. Meenakshi Achi (supra), wherein it is held that the assessee who is also a co-owner of the property, is entitled to the benefit enjoyed by the other co-owners, whose valuation of the same property, at the same rate as that of the assessee, was accepted by the Commissioner of Income Tax and recorded in the order under appeal by the Tribunal. Therefore, in the present case also, when the notice of reopening is held bad in law in case of the co-owner, on the same grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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