9911796707
TMI Blog2024 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... n there is no failure on part of the assessee to disclose fully and truly all the material facts relevant for the assessment. The reasons recorded by AO are also not correct as the assessee has never filed the return in Form ITR-3 or Form ITR-4, as stated in the reasons recorded by treating the income so as to treat the sale consideration received as a business income. Assessee has filed the return of income in Form ITR-5 which is for the purpose of salary income and the other income from the capital gain and as such, the information recorded in the reasons is not correct and the entire reasons are based on the assumption and presumption that the assessee ought to have disclosed the LTCG as business income, without there being any basis. AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 28.3.2021 issued under Section 148 of the Income-Tax Act, 1961 (for short the Act ) for Assessment Year 2016-17. 5. The reasons recorded for issuance of the notice read as under : 1. Brief Details of the Assessee : The assessee filed his return of income for A.Y.2016-17 declaring total income of Rs.3.08.58.620. The return of income was processed u/s 143(1) of the I.T.Act. Subsequently, this case was selected for scrutiny and assessment u/s 143 (3) of the I.T. Act finalized on 28.11.2018 at assessed income of Rs.3,08,58,620/- as returned. 2. Brief Details of Information collected/received by the AO: On verification of case records (Computation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of income was Business, Long term capital gains and no agricultural income. For the last 3 years the assessee has shown his nature of business and source of income as tabulated below: Sr. No. Nature of business AY LTCG Business / Salary 1 Trading 2014-15 Nil Nil/360000 2 Trading 2015-16 13966772 Nil/360000 3 Trading 2016-17 30485096 Nil/360000 In the present case it is observed that the assessee has shown its nature of business as Trading and Property Developer and is involved in the practice of sale purchase of land. Hence, the present transaction is in the nature of trade and should have been treated as business income instead of long term / short term capital gains. 4. Enquiries made by the AO as sequel to information collected/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Mr. Tushar Hemani for the petitioner submitted that the impugned notice under Section 148 of the Act is without jurisdiction, as the same is issued beyond the period of four years from the date of the assessment scrutiny for the year under consideration under Section 143 (3) of the Act. It was submitted that during the regular course of the scrutiny assessment, the inquiry was made with regard to Long Term Capital Gain (for short LTCG ) claimed by the petitioner in the return of income. It was further submitted that the petitioner has never treated the LTCG as a business income as alleged in the reasons recorded, more particularly when the petitioner has filed the return of income in Form ITR-5 and not in Form ITR-3 and Form ITR-4, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible for the Assessing Officer to reopen the assessment on the basis of such error pointed out by the audit objection. In support of his submissions, reliance was placed on the decision in the case of CIT v. P.V.S. Beedies Pvt. Ltd., reported in (1999) 237 ITR 53, wherein the Hon ble Apex Court has observed as under : 2. We have considered the matter. It appears that the reopening was done because in the original assessment donations made to a body known as P.V.S. Memorial Charitable Trust was held by the Income Tax Officer to be eligible for deduction under Section 80G. But subsequently it was pointed out by the internal audit party that the recognition which had been granted to the P.V.S. Memorial Charitable Trust had expired on 22-9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form ITR-5 which is for the purpose of salary income and the other income from the capital gain and as such, the information recorded in the reasons is not correct and the entire reasons are based on the assumption and presumption that the assessee ought to have disclosed the LTCG as business income, without there being any basis. The respondent Assessing Officer has, therefore, not arrived at an independent reasoning for reopening of the assessment. It appears that the impugned notice is issued on the basis of the audit objection which is not permissible in law, in absence of any fresh tangible information available with the Assessing Officer to reopen the assessment, which is already completed under Section 143 (3) of the Act after more ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
