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TMI Blog2025 (3) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale consideration was Rs. 1,42,00,000/-. 2.2 From the aforesaid sale consideration received, the petitioner purchased various agricultural lands. 2.3 The petitioner filed return of income for the year under consideration on 09.03.2016 declaring income of Rs. 1,21,110/- wherein the capital gain on sale of above-referred agricultural land was disclosed and the petitioner had also claimed deduction of Rs. 1,37,49,296/- under Section 54B of the Act. 2.4 The petitioner, thereafter, filed revised return of income on 11.3.2017 declaring total income of Rs. 1.21.110/-, wherein capital gain in question as well as the claim of deduction under Sections 54B of the Act was duly reflected. 2.5 The case of the petitioner was selected for limited scrutiny assessment by issuance of statutory notice under Section 143(2) of the Act dated 20.09.2016 with a view to verify 'whether deduction from capital gains has been claimed correctly'. 2.6 The then Assessing Officer vide notice dated 06.02.2017 issued under Section 142(1) of the Act, called upon the petitioner to furnish various details and evidence as under : * Copy of sale deed, total cost of acquisition, mode and date of payment, sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibhavi Parikh for the petitioner and learned advocate Mr. Karan Sanghani for learned advocate Mrs. Kalpana Raval for the respondent. 4. Learned Senior Advocate Mr. Tushar Hemani for the petitioner, while assailing the impugned notice, has made the following submissions: (1) Learned Senior Advocate Mr. Tushar Hemani, at the outset, submitted that the impugned notice is patently illegal, contrary to law. He further submitted that by way of impugned notice, the respondent sought to reopen the assessment beyond the period of 4 years from the end of relevant assessment year. He further submitted that assessment can be reopened beyond the period of 4 years from the end of relevant assessment year only if the income chargeable to tax has escaped assessment by reason of failure on part of petitioner (i) to make a return under Section 139 or in response to the notice issued under sub-section (1) of Section 142 or Section 148 and (ii) failure to disclose fully and truly all material facts necessary for the assessment for the particular assessment year. Learned Senior Advocate, therefore, submitted that neither of the conditions are fulfilled which enable the authority to reopen the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions: (1) Learned Senior Standing Counsel Mr. Karan Sanghani, at the outset, raised the preliminary objection in respect of maintaining the petition on the ground of availability of statutory alternative remedy. He submitted that reopening of the assessment is sought well within 4 years from the relevant assessment i.e. 2015-16. He submitted that 4 years from the end of relevant assessment year ends on 31.3.2020. However, due to outbreak of Covid-19 pandemic, time was extended by relaxation under the amendment Act and thereby, action under Section 148 of the Act was extended till 30.6.2021 and thereby, same cannot be said beyond the period of 4 years. (2) Learned advocate Mr. Karan Sanghani, relying upon the amended Section 147 of the Act, submitted that only precondition or requirement for the Assessing Officer to assume jurisdiction for reopening is to have 'reasons to believe'. He, therefore, submitted that the Assessing Officer is only required to form an opinion before he proceeds to issue a notice. Accordingly, learned advocate Mr. Karan Sanghani submitted that having recorded the reasons, the Assessing Officer has already formed an opinion and belief that the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase deeds, it was noticed that the assessee has purchased an agricultural land situated at Gam Fathpura, Tal:Vadodara on 09 10 2013 and claimed deduction of Rs. 25,55,399/u/s 54B is not allowable as per provisions of section 54B of the I.T.Act since the assessee purchased before one year from date of transfer of long term capital asset However, the claim of deduction of Rs. 25,55,399/- u/s. 54B was allowed by the A.O is irregular. Analysis of information received: On going through the details on record, it is seen that during the year under consideration the assessee has sold above an immovable property for a consideration of Rs 4,02,00,000/On 23.04 2014. Assessee's share is Rs. 1,42,00,000/against which the assessee has purchased an agricultural land situated at Gam Fathpura, Tal Vadodara on 09.10.2013 and claimed deduction of Rs 25,55,300/- 54B. Findings of the AO : On verification of the case record, it is observed that during the year consideration assessee alongwith 2 other co-owners sold agriculture land for a consideration of Rs. 4,02,00,000/situated at block no.285( old survey no. 277/278/286/287& 288, Khata no. 489, Varnama, V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the petitioner has not fulfilled the conditions prescribed for claiming deduction under Sections 54B and 54F of the Act. The case of the respondent appears to be that the petitioner had sold the agricultural land during the year under consideration and claimed deduction under Section 54B of the Act against the capital gain earned on sale of such agricultural land. The respondent further was of the view that for claiming deduction under Section 54B of the Act - investment in new agricultural land must be made within 2 years from the date of transfer of original asset, whereas, in the instant case, the petitioner has purchased 09 agricultural lands for claiming deduction under Section 54B of the Act out of which, 01 agricultural land has been purchased prior to the date of transfer of original asset and thus, deduction of Rs. 25,55,399/- claimed under Section 54B of the Act is not allowable. 9. Keeping in mind the aforesaid, if the facts of the present case are considered, it is an admitted position of fact that the case of the petitioner was selected for scrutiny and notice under Section 142(1) of the Act also issued upon the petitioner and the petitioner also furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but, in our considered, a mere change of opinion. The same is, therefore, not permissible in eye of law. The revenue authorities at the time of framing assessment order under Section 143(3) of the Act has already considered the aspect of allowability of claim of deduction under Sections 54B of the Act. Thus, the respondent authorities cannot reopen the reassessment on the ground that the then Assessing Officer has not inquired properly and/or adopted casual approach. In our view, issuance of notice under Section 148 of the Act should be based on the reasons to believe which should have direct nexus with any new information and/or tangible material which has come to the knowledge of the respondent authorities based on assessment proceedings. The revenue authorities, cannot under the guise of reasons to believe permit to reopen the case on the ground that the then Assessing Officer has not properly inquired in the proceedings. We are, therefore, of the opinion that in the instant case, the impugned notice seeking reopening of assessment year falls within the category of change of opinion, as at the relevant point of time, in the original inquiry, the petitioner has already m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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