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TMI Blog2023 (1) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... has been already scrutinized. There is no other outer source. Assessee in the return of income had not considered the jantri value for calculating the capital gain - As been mentioned that there is failure on the part of the petitioner to disclose truly and fully all material facts, as quite apparent from the record that not only in response to the notice issued u/s 142(1) of the I.T.Act, all particulars have been furnished by the petitioner at the time of finalizing the assessment. There has been reference on the part of Assessing Officer of the short term capital gain and hence, to say that there had been non-disclosure of all particulars fully and truly is without any merit. Mere perusal of the reasons recorded for reopening indicates that this is not case of any omission or failure on the part of the assessee to disclose the material. It has furnished that in response to the notice and thereafter on 1.9.2014 which lead to finalizing the assessment on 7.11.2014 . Resultantly, this petition warrants interference at the end of the Court. However, being aware of the fact that other issue which has been raised in relation to the provison of Section 45(3) r/w section 50C of the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.30,90,000/- had been credited to the capital account of books of the said partnershipfirm. 2.4 The article of agreement of the deed of partnership was executed and registered on 11.11.2011 with the office of Sub- Registrar, Naroda by the co.owners-cum-partners. He had also applied for determination of the stamp duty as per Section 31 of the Bombay Stamp Duty Act, 1958 and the Additional Superintendent of Stamps, Gandhinagar had determined the stamp duty under Article 44(2)(c) of the said Act at Rs.10,000/- vide its order dated 14.10.2011. 3. The respondent had issued notice under Section 148 of the I.T.Act on 27.3.2019 for the A.Y.2012-2013 proposing to re-assess the total income. The petitioner filed E-return of income on 24.4.2019 declaring the total income at Rs. 11,02,375/- in response to the said notice. He has also called for the copy of reasons for reopening on 2.5.2019 which had been provided on 3.5.2019. The objections were furnished on 5.8.2019 which was inverted on 8.8.2019 in the office of the respondent. They were rejected on 28.8.2019 which has annoyed the petitioner who had apprehension in his mind that the respondent would finalize the reassessment within a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal as per the provisions of the Act. 6. According to the respondent, it had been noted that the assessee along with five other persons purchased a parcel of nonagricultural land for a total amount of Rs. 1,43,22,000/-. These six persons entered into a partnership agreement in the name of M/s. Kamla Developers. It was noticed, upon verification of the assessment records of M/s. Kamla Developers, that the land purchased by the partners were introduced in the firm by the partners as capital contribution pursuant to the registered deed dated 11.11.2011. The land purchased by the petitioner along with others were transferred to the firm as per the said registered Deed and the stamp duty value of the property was shown at Rs.9,64,80,000/-. The share of the assessee did not match with the transaction shown by the assessee. No capital gain in the return of income in respect of the said transaction has also been reflected. The holding period of the assessee with regard to the capital asset was only 8 months and therefore, it has to be construed as the short term capital gain. The omission on the part of the assessee in not disclosing the short term capital gain which resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment after recording the requisite reason as provided under Section 148(2) of the I.TAct. However, the proviso under Section 147 of the Act stipulates that where the original assessment is made under Section 143(3) of the Act and a period of four years from the end of relevant assessment year has expired, unless and until the income chargeable to tax has escaped the assessment by virtue of (i)failure to file return as statutorily prescribed u/s. 139 of the I.T.Act or, (ii)failure to respond to notice issued under Section 142(1) of the Act or Section 148 of the Act; or (iii) to disclose fully and truly all material facts necessary for the assessment of the relevant assessment year, assessing officer can not take any action for initiating the reassessment. Allowing the petition, the Court held that there was no failure on the part of assess either to file return as prescribed u/s. 139 of the I.T.Act or respond to notice issued under Section 142(1) of the I.T.Act. Also so doing that the Court has also relied upon the other decisions in this regard. The Court has held that :- 6. The only question that would then survive would be whether there was any failure on the part of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed period of limitation, even if income has escaped assessment, if the required conditions enumerated in the Proviso are not shown to exist, no action can be initiated under Section 147 of the Act regardless of the fact that income may have escaped assessment. 9. In the circumstances, impugned notice dated 10-05- 2000 for each of the Assessment Years in question is hereby quashed. 9. Per contra Mrs. Kalpana Raval, learned Sr. Standing Counsel assisted by Mr.Karan Sangani, learned advocate appearing for the respondent has argued that the group of petitions in relation of Section 50C and Section 45(3) of the Act are pending and that issue requires detailed deliberation since that is one of the vital facts. In the instant case, it is urged that Assessing Officer has rightly reopened the assessment even after scrutiny assessment at the same time it is not disputed the reasons recorded has furnished to the petitioner does not anywhere disclosed that this case would fall under explanation 2 of Section 147 of the I.T.Act. It is also further argued that in the reasons recorded, it is clearly mentioned that the holding period is only of 8 months and therefore, the short term capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not chargeable to income-tax; b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; (ba) where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E; (c) where an assessment has been made, but i. income chargeable to tax has been underassessed; or ii. such income has been assessed at too low a rate; or iii. such income has been made the subject of excessive relief under this Act;or iv. excessive loss or depreciation allowance or any other allowance under this Act has been computed; (ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under subsection (2) of section 133C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be, the assessee has understated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee with five other purchased a parcel NA land for total Rs.1,43,22,000/- , the share of assessee is Rs. 28,64,400/- paid as per registered deed for such purchase dated 1.3.2011. The land was contributed by the assessee with the other as capital contribution and capital account, in the books of partnership firm is Rs.1,54,50,000/-. What is essentially objected to is that the assessee in the return of income had not considered the jantri value for calculating the capital gain. The transfer of the land by the assessee according to respondent is assessable u/s 48 of the Act and the full value of consideration as per Section 50C is Rs.1,92,96,000/- where the cost to assessee is Rs. 30,34,400/- and the holding period is 8 months only, it would be liable for short term capital gain and therefore the income has escaped the assessment due to failure on the part of the assessee. 12. We could notice from material which has been brought on record that the notice under Section 142(1) of the I.T.Act has been issued and the Annexure A speaks of various details as also called for furnishing the purchase purchase/sale deed of the property sold during the years i.e. 13th March, 2012 and 23rd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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