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TMI Blog2024 (9) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... irst proviso to Section 147 of the Act would apply to the cases where there is failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment of the relevant assessment year. The assessment proceedings and the nature of facts disclose by the assessee clearly show that he has disclosed the acquisition of capital gains and drawing of the FDR. Such FDR was also verified by the Assessing Officer with the bank. There is no failure on the part of the assessee in disclosing the material facts necessary for the relevant assessment year. Therefore, invocation of present petition is barred by first proviso to Section 147 of the Act. No proper reason which led to issuance of notice dated 26.03.2015 - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 (herein after referred to as the Act ) in the course of assessment proceedings and an amount of Rs.34,00,000/- was deposited in the FDR under capital gains scheme. The assessee received capital gain of Rs.37,75,099/- as the compensation in the land acquisition proceedings. 3) The Assessment Officer after due enquiry has passed the assessment order dated 07.12.2010 after issuing the notice under Section 143(2) of the Act. In the said assessment order, it has been clearly mentioned that the Assessment Officer has verified with the Bank and sought a clarification from the assessee with regard to FDR prepared by the assessee under the capital gains scheme, which was not utilized for the prescribed purpose within the stipulated time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is that the notice issued under Section 147 read with 148 of the Act was time barred. The second contention raised was that the reasons, which were the foundation for issuance of notice under Section 147 read with Section 148 of the Act were not the result of any fresh information or fresh gathering of the material, but it is the change of opinion or re-appreciation of material which is already on record and there is no suppression or concealment of any facts. Therefore, on these two grounds, the impugned notices are liable to be quashed. 7) The learned counsel appearing for the Income Tax Department vehemently opposed the claim of the writ petitioner that notices are barred by limitation. According to him, four year limitation applies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order was passed on 07.12.2010 with the following conclusion:- On verification from the bank and seeking clarification from the assesee, it was gathered that the FDR prepared by the assessee under the capital gains scheme was not utilized for the prescribed purpose within the stipulated time. In view of these facts, though on the basis of investment of Rs.2,50,000/- in construction and Rs.34,00,000/- in preparation of FDR under capital gains scheme, the assessee will not be liable of capital gain this year but the assessee is liable for payment of tax in the assessment year 2011-2012, as calculated in the manner mentioned above. 11) It is not in dispute that all the facts relating to receipt of capital gains and deposit of FDR were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2011- 2012. Accordingly, the assessee also paid tax during this assessment year. 13) The extended limitation under the first proviso to Section 147 of the Act would apply to the cases where there is failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment of the relevant assessment year.. The assessment proceedings and the nature of facts disclose by the assessee clearly show that he has disclosed the acquisition of capital gains and drawing of the FDR. Such FDR was also verified by the Assessing Officer with the bank. There is no failure on the part of the assessee in disclosing the material facts necessary for the relevant assessment year. Therefore, invocation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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