9911796707
TMI Blog2022 (10) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had filed his return of income on 29.09.2009 declaring total income of Rs. 2,95,400/-. The AO completed the assessment u/s. 143(3) of the Act assessing total income of Rs. 4,40,410/- and included long term capital gain of Rs. 21,312/- as declared by the assessee. Thereafter the case of the assessee was reopened by issuance of notice u/s. 148 of the Act after recording the reasons. In response to the notice, the assessee replied to treat the return already furnished as return filed. During the course of reassessment proceedings the AO found that the value so adopted by the Stamp Valuation Authority was not under dispute and no need came up to make a reference to any authority or to a Valuation Officer. Further the AO worked out the Long Term Capital Gains u/s. 50C of the Act at Rs. 10,61,312/- and brought the same to tax in the hands of the assessee. 3. Against the above additions made by the AO in the assessment order, the assessee preferred appeal before the CIT (A) and the CIT (A) partly allowed the appeal of the assessee. 4. Now, the assessee is in further appeal before the Tribunal. 5. Before us, no one was present on behalf of the assessee, thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r does not survive and the issue is not challenged the amount which is deleted by the CIT (A) cannot necessitate the adjudication of the ground. The issue in this case is that the assessee has declared income of Rs. 295400/- which included long term capital gain of Rs. 21312/-. The assessment year involved here is 2009-10 and the case was reopened well before 28.11.2012. The period is covered less than four years, hence the proviso u/s 147 is not attracted. The relevant clause of explanation 2 under section 147 is worth to be reproduced as below: Explanation 2- For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:- (a)..................... (b)..................... (ba)..................... (c) where an assessment has been made, but- (i) income chargeable to tax has been under assessed; or (ii) such income has been assessed at too Iowa 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; The instant case falls in cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee, which were examined". This contention of the assessee was not controverted by the Ld AO. Various case laws were relied upon by both the parties. 9. The undisputed fact of the present case is that the original assessment of the assessee for AY 2009-10 was completed U/s 143(3). Returned Income of the assessee for Rs. 2,95,400/-, assessed and determined at Rs. 4,40,410/- which included LTCG for Rs. 21,312/-. Documents pertaining to LTCG were submitted by the assessee during the assessment proceedings u/s 143(3). Reason for reopening that the information based on which reopening was done was from the records of the assessee, shows that the AO was already in possession of such documents, has full command over such information and while accepting the LTCG declared by the assessee was having these documents with him. Thus, the assessee had fully and truly submitted all the necessary information during the original assessment proceeding u/s 143(3). 10. Ld CIT (A) has decided this issue against the assessee by observing that during the original assessment proceedings no query about the sale consideration was raised by the AO, thus in case of no query and no vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to Section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in Section 147 of the Act. However, on receipt of representations from the Companies against omission of the words "reason to believe", Parliament re-introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer. We quote here in below the relevant portion of Circular No. 549 dated 31st October, 1989, which reads as follows: 2 http://www.itatonline.org "7.2 Amendment made by the Amending Act, 1989, to reintroduce the expression `reason to believe' in Section 147. --A number of representations w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even in one sentence that the investigation report of 13.3.2006 was not with the AO when he completed the assessment. The material on record in fact suggests otherwise; the nature of the queries put to assessee and the replies and confirmation furnished to the AO in the course of the regular assessment clarify that what excited the suspicion was indeed gone into by the AO himself while framing the assessment under section 143(3). This Court is fortified in its conclusions by the decision of the Supreme Court in Commissioner of Police v. Gordhandas Bhanji AIR 1952 SC 16 where it was held that public orders made by public authorities intended to have effect on the public should be construed objectively with reference to the language used rather than explanations subsequently offered. This principle was reiterated in a somewhat different vein in MS Gill v. Chief Election Commissioner AIR 1978 SC 851 by the Supreme Court. Such being the case this Court has no doubt that the impugned notice, in the circumstances of the case is based upon stale information which was available at the time of the original assessment and in fact appears to have been used by the AO at the relevant time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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