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TMI Blog2024 (3) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act, 1961 (hereinafter referred to as "the Act"), dated 31.03.2012. 2. The grounds of appeal raised by the assessee are as follows: "1. On the facts and in the circumstances of the case as well in law, the learned CIT(Appeals) has erred in upholding the action of the AO to assume the jurisdiction u/s 147 of the Act and hence, the assessment proceedings carried out and concluded u/s 144 r.w.s. 147 of the Act by the AO for the income assessed at Rs. 2,09,62,630 on account of alleged deemed Capital Gain u/s 50C of the Act, being without jurisdiction, bad in law, illegal, invalid and hence, liable to be held as void ab initio or annulled in toto. 2. On the facts and in the circumstances of the case as well in law, the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... griculture land in question is out of the purview of the ambit and definition of "capital asset" u/s 2(14) of the Act by virtue of specific exclusion provided under clause (iii)(b) of Sub-Section (14) of Section 2 of the Act, applicable for the relevant year under appeal and hence, the addition of Rs. 2,09,62,630 made by the AO and confirmed by the CIT(Appeals) applying erroneously and under complete mis-conception, the provisions of the law not in existence in the Stature for the assessment year under appeal, being without jurisdiction, prejudicial, illegal, invalid, bad in law, is liable to be quashed or annulled in toto. 5. On the facts and in the circumstances of the case as well in law, both the lower authorities have grievously fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer noted that in response to notice under section 148, the assessee has not filed return of income. The assessing officer in para-2 of assessment order recorded that that despite issuing various show cause notices no response was made by the assessee. The assessing officer in para-3 of assessment order recorded that final show cause notice was issued to the assessee as to why amount of Rs. 2.09 Crore be added to the income of assessee. The assessing officer in para-3 of his order recorded that assessee was allowed time till 18.12.2019 to furnish her explanation but assessee has not complied. The assessing officer on the basis of value determined by the stamp valuation authority for the purpose of registration of transaction of land at R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m), Chimanbhai Dahyabhai Patel Vs ITO (2022) 140 taxmann.com 22 (Surat-Trib), Mohideen Sharif Inayatulla Sharif Vs ITO (2022) 139 taxmann.com 551 (Chennai-Trib)- and George Gee Varghese Vs ITO (2023) 152 taxmann.com 493 (Chennai-trib). 5. The ld CIT(A) after consideration the submissions of the assessee confirmed that action of assessing officer in reopening under section 147 by holding that the assessee has not offered capital gain on sale of immoveable property as no return of income was filed, the reopening was made after recording satisfaction. On merit, the ld. CIT(A) held that he has gone through the explanatory memorandum of Finance Act 2013 and Circular of CBDT No. 03/2014 dated 24 January 2014. The Circular of CBDT is clear that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has not filed return of income in response to notice u/s 148 of the Act. Hence, assessee has never submitted any documents and evidences before the assessing officer. Therefore, the documents and evidences submitted by the assessee by way of paper book before the Tribunal, have never been examined by the assessing officer. Therefore, matter may be remitted back to the file of the assessing officer for fresh adjudication. 7. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. The Ld. Counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e distance of the said land from the municipality, has given rise to considerable litigation. Although, the amendment by the Finance Act, 2013 w.e.f. 1-4-2014 prescribes the measurement of the distance to be taken aerially, ambiguity persists in respect of earlier periods. 2. The matter has been examined in light of judicial decisions on the subject. The Nagpur Bench of the Hon'ble Bombay High Court vide order dated 30-3-2015 in ITA 151 of 2013 in the case of Smt. Maltibai R Kadu has held that the amendment prescribing distance to be measured aerially, applies prospectively i.e. in relation to assessment year 2014-15 and subsequent assessment years. For the period prior to assessment year 2014-15, the High Court held that the distance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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