Sh. Vinod Malhotra, Chandigarh V. ACIT, Chandigarh

ITA 334/CHANDI/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1642 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ATUL GOEL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Depreciation; Period of limitation; Question of law; Wrong claim; Difference of opinion; Assessment record; Change of opinion; Reassessment proceedings
• Section: 143(3); 50C; 147; 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 334/CHD/2014 ASSESSMENT YEAR: 2008-09 SHRI VINOD MALHOTRA, V THE ACIT, SCO 305, SECTOR 35-B, CIRCLE 4(1), CHANDIGARH. CHANDIGARH. PAN: AAVPM8609A (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI ATUL GOEL & AMAN PARTI RESPONDENT BY : SHRI JITENDER KUMAR DATE OF HEARING : 18.09.2015 DATE OF PRONOUNCEMENT : 28.09.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) CHANDIGARH DATED 01.10.2013 FOR ASSESSMENT YEAR 2008-09. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT DATED 06.12.2010 AT AN INCOME OF RS. 9,63,820/- AGAINST THE RETURNED INCOM E SHOWN BY THE ASSESSEE AT RS. 7,92,320/- VIDE RETURN FILED ON 30.09.2008 AND RETURN WAS PROCESSED UNDER SECTIO N 143(1) ON 19.11.2009. THE ASSESSEE IS RUNNING A PROPRIETORY CONCERN UNDER THE NAME AND STYLE OF M/S MALHOTRA & COMPANY AND THE NATURE OF THE BUSINESS A ND 2 PROFESSION IS WHOLESALE AND RETAIL TRADE OF REFRIGE RATION EQUIPMENTS AND REPAIRS THEREOF DURING THE PERIOD UN DER CONSIDERATION. THE ASSESSEE HAS SHOWN INCOME FROM HOUSE PROPERTY, INCOME FROM SHORT TERM CAPITAL GAIN AND ALSO SHORT TERM CAPITAL GAIN. SUBSEQUENTLY, THE AS SESSING OFFICER NOTICED THAT INCOME HAS ESCAPED ASSESSMENT AND REOPENED THE CASE FOR RECORDING THE REASONS UNDER S ECTION 147 OF THE INCOME TAX ACT AS UNDER : OFFICE OF THE ASSTT. COMMISSIONER OF INCOME-TAX CIR CLE 4(1) AAYKAR BHAWAN, ROOM NO. 514, SECTOR 17-E ,CHANDIGARH 1. NAME OF THE ASSESSEE : SHRI VINOD MALHOTRA SCO 305, SECTOR 35 B CHANDIGARH. 2. ASSTT. YEAR 2008-09 3. PAN AAVPM8609A REASONS U/S 148 OF THE IT ACT,1961 ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143(3) A T AN INCOME OF RS. 9,63,870/- AGAINST THE RETURNED INCOM E OF RS. 7,92,320/-. IT HAS BEEN NOTICED THAT AS PER COMPUTA TION FILED BY THE ASSESSEE VIDE HIS LETTER DATED 14.01.2010, L ONG TERM CAPITAL GAIN WAS DECLARED ON SALE CONSIDERATION OF SCO 6, SECTOR 26, CHD. AT RS. 33,60,933/- (L/3 RD IN 50% SHARE). THE COMPUTATION OF LONG TERM CAPITAL GAIN OF THE ASSESS EE IS REPRODUCED HERE UNDER:- LONG TERM CAPITAL GAIN SCO 6, SECTOR 26, CHD (L/3 RD IN 50% SHARE) 18/12/2007 SALE CONSIDERATION RS. 33,60,933/- LESS: INDEXED COST PURCHASE PRICE (L/3 RD IN 50%.SHARE) RS. 30.55.919/- F.Y. 2003-04 , 2568700/463 * 551 LONG TERM CAPITAL GAIN RS. 3,04,014/- WHEREAS COPY OF TRANSFER OF LEASE RIGHT OF 50% OF SH ARE IN ABOVE SHOWROOM, FILED BY THE ASSESSEE DURING THE ASSTT. PRO CEEDINGS SHOWS THAT THE ADMINISTRATION HAS CHARGED RS. 18,26,70 0/- AS STAMP DUTY AGAINST' THE CONSIDERATION AMOUNT OF RS. 6, 08,89,000/- CAPITAL GAIN IN THIS CASE SHOULD HAVE BEEN CALCULATED AS PER SECTION 50C(1) OF IT ACT. 3 UNDER SECTION 50C(1) OF I.T. ACT- SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES; THE SECTION READS AS UNDER:- 'WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEIN G LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR AS SESSED BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER TH IS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORITY') FOR THE PURPOSE OF PAYMENT OF STAMP PURPOSES OF SECTION 48, BE DEEME D TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF SUCH TRANSFER. ' KEEPING IN VIEW THE PROVISIONS OF SECTION 50C (1) TH E AMOUNT OF RS. 6,09,89.000/- IS DEEMED TO BE THE SALE CONSIDERATION. THE ASSESSEE HAS CLAIMED 1/3 RD SHARE OF SALE CONSIDERATION IN HIS RETURN. THE CAPITAL GAIN REQUIRED TO BE CALCULATED AS UNDER:- LONG TERM CAPITAL GAIN SCO 6, SECTOR 26, CHD (L/3 RD IN 50% SHARE) 18/12/2007 (TOTAL CONSIDERATION MONEY RS. 6,08,89,000/-) SALE CONSIDERATION RS. 2,02,96,333/- LESS: INDEXED COST PURCHASE PRICE (1/3 RD IN 50% SHARE) RS. 40,85,888/- (AS PER STAMP PAPERS COST OF PURCHASE RS. 1,03,00,000/-) F.Y. 2003-04 2568700/463 * 551 LONG TERM CAPITAL GAIN RS. 1,62,10,445/- THUS, THE INCOME IS SHORT ASSESSED BY RS. 1,31,53,526/-. (1,62,10,445 - 30,56,919) THEREFORE, I HAVE REASONS TO BELIEVE THAT INCOME HA S ESCAPED ASSESSMENT TO THE TUNE OF RS. 1,31,53,526/. 2. FURTHER THE ASSESSEE PAID RENT OF RS. 1,49,440/- BUT NO EVIDENCE OF TDS ON RENT OF RS. 1,49,440/- IS AVAILA BLE ON RECORD. HENCE THERE APPEARS VIOLATION OF SECTION 40 (A)(IA) WHICH NEEDS VERIFICATION. IN THE ABSENCE OF ANY DOCUMENTA RY EVIDENCE REGARDING DEDUCTION OF TDS ON RENT, 1 HAVE ALSO REA SON TO BELIEVE THAT THERE IS UNDER-ASSESSMENT TO THE TUNE OF 1,49,440/-. KEEPING IN VIEW THE ABOVE FACTS & PROVISIONS OF THE INCOME TAX ACT, NOTICE UNDER SECTION 148 IS BEING ISSUED. SD/- 23.09.2011 ( POONAM SHARMA ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 4(1), CHANDIGARH. 4 2(I) THEREFORE, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 19.09.2011 REQUIRING THE ASSESSEE TO FILE HIS RETURN WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THE NOTICE. THE NOTICE WAS SERVED ON 23.09.2011 AND IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 18.10.2011. THE ASSESSING OFFICER ISSUED QUESTIONNAIRE WHICH WAS RESPONDED BY ASSESSEE TIME TO TIME. PERUSAL OF THE RECORD SHOWS THAT ASSESSEE HAS SOLD HIS SHARE IN SCO 6, SE CTOR 26, CHANDIGARH ON 18.12.2007, SALE DEED OF WHICH IS PLACED ON RECORD. AS PER SALE DEED, THE VALUE OF TH E PROPERTY FOR THE PURPOSE OF STAMP |DUTY WAS DETERMI NED AT RS. 6,08,89,000/- (50%) IN WHICH THE ASSESSEE HA S 1/3 RD SHARE. THE ASSESSEE WAS CONFRONTED AND ASKED TO EXPLAIN WHY THE VALUE OF THE PROPERTY MAY NOT BE TA KEN AS PER PROVISIONS OF SECTION 50C(1) OF THE ACT. THE AS SESSEE FILED THE REPLY WHICH IS QUOTED IN THE ASSESSMENT O RDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT THE SHARE OF THE ASSESSEE IS LESSER AND THAT PURCHASER HAS ALREADY F ILED AN OBJECTION BEFORE THE REVENUE AUTHORITIES CHALLENGIN G THE IMPOSITION OF STAMP DUTY ON FIXED VALUE OF REGISTRA TION BY THE AUTHORITIES AS THE SAID PROPERTY WAS DISPUTED A ND RENTED PROPERTY. THE ASSESSING OFFICER, HOWEVER, D ID NOT ACCEPT CONTENTION OF THE ASSESSEE AND NOTED THAT TH E EXACT CALCULATION OF THE VALUE OF LONG TERM CAPITAL GAIN OF THIS PROPERTY IS IN A SUM OF RS. 1,72,39,414/- INSTEAD O F RS. 3,04,014/- SHOWN BY THE ASSESSEE AND ACCORDINGLY ADDITION OF RS. 1,69,35,400/- WAS MADE. 5 2(II) SIMILARLY, THE ASSESSEE HAS SOLD HIS SHARE (1 /4 TH OF 25% OF THE TOTAL AREA) IN THE SAME PROPERTY ON 15.0 - 8.2007 AND SHOWN THE SALE VALUE AT RS. 12,60,350/- BEING 1/4 TH OF 25% SHARE. THE VALUE WAS ADOPTED AT THE SAME FIGURE OF RS.6.08 CR AND VALUE OF THE PROPERTY WAS TAKEN AT RS. 66,47,863/- INSTEAD OF RS. 2,79,088/- AND MA DE ADDITION OF RS. 63,50,775/- AND ASSESSMENT WAS ACCORDINGLY COMPLETED. NO ADDITION OF RS. 1,49,440/ - U/S 40(A)(IA) WAS HOWEVER MADE. 3. THE ASSESSEE CHALLENGED THE RE-OPENING OF THE ASSESSMENT UNDER SECTION 148 OF THE ACT ALONGWITH ADDITION OF RS. 2,32,86,175/- ON ACCOUNT OF LONG TE RM CAPITAL GAIN AND ADDITION OF RS. 1,49,440/- BEFORE LD. CIT(APPEALS). HOWEVER, APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 4. THE OFFICE HAS RECORDED THAT APPEAL OF THE ASSES SEE IS TIME BARRED BY 86 DAYS. THE ASSESSEE FILED APPLICA TION FOR CONDONATION OF DELAY. IT IS STATED THAT THE DELAY IS ON ACCOUNT OF ILLNESS OF THE ASSESSEE, HENCE THE ASSES SEE COULD NOT ATTEND THE BUSINESS AND TAX AFFAIRS DURIN G THE SAID PERIOD AND COULD NOT CONTACT HIS COUNSEL. THE ASSESSEE HAS FILED MEDICAL CERTIFICATE IN SUPPORT O F THE CONTENTION IN WHICH IT WAS STATED THAT ASSESSEE SUF FERED FROM PERMANENT DISABLING DISEASE SUCH AS MULTIPLE SCLEROSIS, NEUROPATHY ALONGWITH DIABETES AND HYPERTENSION. SAME WAS SUPPORTED BY CASE SUMMARY O F THE ASSESSEE AND PRESCRIPTIONS PROVIDED. THE AFFID AVIT OF ASSESSEE IN SUPPORT OF THE REQUEST FOR CONDONATION IS ALSO 6 FILED IN WHICH ALSO SAME FACTS HAVE BEEN AVERRED. IT WAS ALSO EXPLAINED IN THE AFFIDAVIT THAT ASSESSEE HAS B EEN SUFFERING FROM CHRONIC IRREVERSIBLE DISEASE SUCH AS DEMYELINATION, DIABETES, HYPERTENSION, PARAPLEGIA- PARALYSIS OF LEGS, NEUROGENIC BLADDER AND NEUROPATH Y AND IS UNDER REGULAR TREATMENT. IT IS ALSO STATED IN T HE AFFIDAVIT THAT FOR THE DAILY ROUTINE ACTIVITIES ALS O, ASSESSEE IS PARTIALLY DEPENDENT ON OTHERS. 5. ON CONSIDERATION OF RIVAL SUBMISSIONS AND MATERI AL ON RECORD, WE ARE SATISFIED THAT ASSESSEE WAS PREVE NTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION, THEREFORE, DELAY IN FILING APPEAL IS CO NDONED. 6. THE ASSESSEE IN THE PRESENT APPEAL HAS CHALLENGE D THE ADDITION OF RS. 2,32,86,175/- ON ACCOUNT OF LON G TERM CAPITAL GAIN AND ADDITION OF RS. 1,49,440/- ON ACCO UNT OF VIOLATION OF SECTION 40(A)(IA) OF THE ACT. 7. THE ASSESSEE ALSO FILED APPLICATION FOR ADMISSION O F THE ADDITIONAL GROUND OF APPEAL CHALLENGING THE UPH OLDING OF THE RE-OPENING OF ASSESSMENT UNDER SECTION 147/1 48 OF THE ACT. IT IS STATED THAT THE ISSUE OF RE-OPENING OF THE ASSESSMENT WAS CHALLENGED BEFORE LD. CIT(APPEALS) A ND LD. CIT(APPEALS) ALSO GAVE FINDINGS OF THE SAME, HOWEVE R, DUE TO UNINTENTIONAL AND INADVERTENT MISTAKE, THIS GROU ND COULD NOT BE TAKEN UP IN THE GROUND OF APPEAL FILED BEFORE THE TRIBUNAL. IT IS STATED THAT THIS ISSUE IS LEGA L IN NATURE AND ARISEN OUT OF THE ORDERS OF THE AUTHORITIES BEL OW AND 7 DO NOT REQUIRE ANY FRESH EXAMINATION. THEREFORE, ADDITIONAL GROUND MAY BE ADMITTED. 8. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE R E- OPENING OF THE ASSESSMENT UNDER SECTION 147/148 WAS CHALLENGED BEFORE LD. CIT(APPEALS) AND LD. CIT(APPE ALS) DECIDED THIS ISSUE AGAINST THE ASSESSEE. THE ASSES SING OFFICER ALSO REPRODUCED THE REASONS RECORDED FOR RE - OPENING OF THE ASSESSMENT IN THE IMPUGNED ASSESSMEN T ORDER AND AS SUCH, FACTS ARE ARISING FROM THE IMPUG NED ORDERS ITSELF. SINCE IT IS LEGAL IN NATURE AND GOE S TO THE ROOT OF THE MATTER. THEREFORE, THIS GROUND COULD B E ADMITTED FOR HEARING. THE CONTENTION OF THE ASSESS EE IS CORRECT THAT THIS GROUND MIGHT NOT HAVE BEEN TAKEN IN THE GROUND OF APPEAL BY INADVERTENT MISTAKE. HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS CIT 229 ITR 382 HELD THAT, IN THE INSTANT CASE, THEREFORE, THE TRIBUNAL HAD JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISE FROM THE FACTS AS FOUND BY THE LOWER AUTHORITIES AND HAVING BEARING ON THE TAX LIA BILITY OF THE ASSESSEE. CONSIDERING THE ABOVE DISCUSSION, WE ADMIT THE ABOVE ADDITIONAL GROUND OF APPEAL CHALLENGING T HE RE- OPENING OF THE ASSESSMENT UNDER SECTION 147/148 OF THE ACT FOR HEARING. 9. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE LD . COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE 8 BEFORE AUTHORITIES BELOW AND CHALLENGED THE RE-OPEN ING OF THE ASSESSMENT ON THE REASONS THAT THE RE-OPENING O F ASSESSMENT IS BAD IN LAW AS IT WAS REOPENED ON MERE CHANGE OF OPINION, THE ASSESSING OFFICER ON THE SAM E FACTS, EARLIER DROPPED THE PROCEEDINGS UNDER SECTIO N 154 OF THE ACT WHICH ARE ALSO RECORDED IN THE REASONS F OR RE- OPENING OF THE ASSESSMENT AND THAT THE ASSESSING OF FICER ISSUED THE NOTICE UNDER SECTION 148 OF THE ACT WITH OUT RECORDING REASONS PRIOR TO ISSUE OF THE NOTICE. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHOR ITIES BELOW AND PRODUCED THE ASSESSMENT RECORD FOR OUR PE RUSAL AND ALSO FILED COPIES OF THE ORDER-SHEET RECORDED B Y THE ASSESSING OFFICER, NOTICE UNDER SECTION 148 OF THE ACT, REASONS RECORDED FOR RE-OPENING OF THE ASSESSMENT, NOTICE ISSUED UNDER SECTION 154/155 OF THE ACT AND REPLY O F THE ASSESSEE TO NOTICE UNDER SECTION 154 OF THE ACT. 10. THE LD. DR SUBMITTED THAT EVEN IF NOTICE HAS BEEN ISSUED ON 19.09.2011 BUT IT WAS SERVED UPON ASSESSE E ON 23.09.2011. THEREFORE, IT MAY BE TYPOGRAPHICAL ERRO R IN ISSUING NOTICE UNDER SECTION 148 OF THE ACT. 11. AFTER CONSIDERING RIVAL SUBMISSIONS, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE IMPUGNED ORDERS RE GARDING RE-OPENING OF THE ASSESSMENT UNDER SECTION 147/148 OF THE ACT. HON'BLE FULL BENCH OF DELHI HIGH COURT IN THE CASE OF KELVINATOR OF INDIA LTD. 256 ITR 1 BY FOLLO WING CIRCULAR NO.549 OF CBDT HELD THAT ON MERE CHANGE OF OPINION OF AO CANNOT BE A GROUND FOR RE-ASSESSMENT AND 9 THAT AMENDMENT OF SEC. 147 W.E.F. 1.4.89 HAS NOT ALTERED THE POSITION. HONBLE GUJRAT HIGH COURT IN THE CASE OF GARDEN SILK MILLS P. LTD. 237 ITR 66 8 HELD THAT HOWEVER WIDE THE SCOPE OF TAKING ACTION U/S 1 48 OF IT ACT, IT DOES NOT CONFIRM JURISDICTION ON CHANGE OF THE INTERPRETATION OF A PARTICULAR PROVISION EARLIER AD OPTED BY THE ASSESSING AUTHORITY. FOR COMING TO THE CONCLUSI ON THAT THERE HAS BEEN EXCESSIVE LOSS OR DEPRECIATION ALLOW ANCE OR THAT THERE HAS BEEN UNDER ASSESSMENT OR ASSESSMENT AT A LOWER RATE OR FOR APPLYING OTHER PROVISIONS OF EXPL ANATION 2 TO SEC. 147, IT MUST BE ON MATERIAL AND IT SHOULD HAVE NEXUS FOR HOLDING SUCH OPINION CONTRARY TO WHAT HAS BEEN EXPRESSED EARLIER. EVEN AFTER THE AMENDMENT OF SEC. 147, MERE CHANGE OF OPINION DOES NOT CONFIRM JURISDICTIO N ON THE ITO TO INITIATE PROCEEDING FOR REASSESSMENT MER ELY BY RESORTING TO EXPLANATION 1 TO SEC. 147. HONBLE CA LCUTTA HIGH COURT IN THE CASE OF BERGER PAINTS INDIA LTD. 245 ITR 648 HELD WHEN ANY PARTICULAR ISSUE HAS BEEN CONSIDE RED BY THE ITO AND CIT(A) AND WHEN THERE IS NO FAILURE TO DISCLOSE THE FACTS, THE REASSESSMENT PROCEEDINGS AR E NOT VALID. HON'BLE SUPREME COURT IN THE CASE OF CIT VS. FORANER FRANCE, 264 ITR 566 HELD REASSESSMENT NOT ON BASIS OF MERE CHANGE OF OPINION LAW SAME BEFORE A ND AFTER AMENDMENT BY DIRECT TAX LAWS. HON'BLE SUPREME COURT IN THE CASE OF INDIAN OIL CORPORATION, 159 IT R 956 HELD THAT NO CASE U/S 148 IS MADE OUT WHEN THE FACT S WERE KNOWN ALL ALONG WITH TO THE REVENUE WHILE MAKING TH E ORIGINAL ASSESSMENT. HON'BLE SUPREME COURT IN THE C ASE OF 10 ASSOCIATED STONE INDUSTRY LTD., 224 ITR 560 HELD TH AT THE ASSESSEE SHALL HAVE TO DISCLOSE ONLY THE PRIMARY FA CTS. HON'BLE SUPREME COURT IN THE CASE OF CIT V KELVINAT OR OF INDIA LTD. 320 ITR 561 CONFIRMED THE DECISION OF TH E DELHI HIGH COURT IN THE CASE OF KELVINATOR OF INDIA LTD. HOLDING THAT THE CONCEPT OF CHANGE OF OPINION MUST BE TREA TED AS AN IN-BUILT TEST TO CHECK THE ABUSE OF POWER. HON'BLE BOMBAY HIGH COURT IN THE CASE OF TITANOR COMPONENTS LTD. V ACIT 343 ITR 183 HELD AS UNDER : WHERE A REASSESSMENT IS SOUGHT TO BE MADE AFTER FOU R YEARS THE POWER CONFERRED BY SECTION 147 OF THE INCOME-TAX ACT, 196 1, DOES NOT PROVIDE AFRESH OPPORTUNITY TO THE ASSESSING OFFICER TO CORR ECT AN INCORRECT ASSESSMENT MADE EARLIER UNLESS THE MISTAKE IN THE A SSESSMENT SO MADE IS THE RESULT OF A FAILURE OF THE ASSESSEE TO FULLY AN D TRULY DISCLOSE ALL MATERIALS FACTS NECESSARY FOR ASSESSMENT . THERE IS A DIFFERENCE BETWEEN A WRONG CLAIM MADE BY AN ASSESSEE AFTER DISCLOSING A LL THE TRUE AND MATERIAL FACTS AND A WRONG CLAIM MADE BY THE ASSESSEE BY WI THHOLDING THE MATERIAL FACTS FULLY AND TRULY. IT IS ONLY IN THE L ATTER CASE THAT THE ASSESSING OFFICER WOULD BE ENTITLED TO PROCEED UNDE R SECTION 147. HELD, ALLOWING THE PETITION, THAT THE ASSESSING OFF ICER HAD NOT RECORDED THE FAILURE ON THE PART OF THE PETITIONER TO FULLY AND TRULY DISCLOSE ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT YEAR 19 97-98. WHAT WAS RECORDED WAS THAT THE PETITIONER HAD WRONGLY CLAIME D CERTAIN DEDUCTIONS WHICH HE WAS NOT ENTITLED TO. THE REASSE SSMENT PROCEEDINGS INITIATED IN THE YEAR 2004 WERE NOT VALID. 12. IT IS NOT IN DISPUTE THAT EARLIER THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 06.12.2010. THE ASSESSEE IN THE COMPUTATION OF INCO ME DISCLOSED LONG TERM CAPITAL GAIN ON ACCOUNT OF SALE OF PROPERTY IN QUESTION I.E. SCO 6, SECTOR 26, CHANDIG ARH 11 AND HAS DISCLOSED THE LONG TERM CAPITAL GAIN. THE ASSESSMENT RECORD IS PRODUCED FOR OUR PERUSAL WHICH CONTAINED THE QUERIES RAISED BY THE ASSESSING OFFIC ER ON THE ISSUE OF LONG TERM CAPITAL GAIN. THE REPLIES O F THE ASSESSEE ARE ALSO AVAILABLE ON RECORD WHICH ALSO SH OWS THAT ASSESSEE HAS FURNISHED THE EVIDENCE OF THE SAL E OF THE PROPERTY IN QUESTION BEFORE ASSESSING OFFICER AT ASSESSMENT STAGE. IT WOULD, THEREFORE, SHOW THAT A SSESSEE DISCLOSED COMPLETE FACTS IN THE RETURN OF INCOME AS WELL AS AT THE ASSESSMENT STAGE WITH REGARD TO LONG TERM CA PITAL GAIN ON ACCOUNT OF TRANSFER OF THE PROPERTY IN QUES TION. THE LD. DR ALSO FILED COPIES OF THE ORDER-SHEET WRI TTEN BY THE ASSESSING OFFICER WHICH ALSO SHOWS THAT ASSESSI NG OFFICER EXAMINED THIS ISSUE OF LONG TERM CAPITAL GA IN AT THE ASSESSMENT STAGE. THE ASSESSEE FILED COPIES OF THE SALE DEEDS AND OTHER DETAILS BEFORE ASSESSING OFFIC ER ON THE ISSUE OF LONG TERM CAPITAL GAIN, THEREFORE, THE RE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE COM PLETE AND MATERIAL FACTS AT THE ORIGINAL ASSESSMENT STAGE . THE ASSESSING OFFICER, AFTER CONSIDERING THE EVIDENCES AND MATERIAL ON RECORD, ACCEPTED THE COMPUTATION OF LON G TERM CAPITAL GAIN BY THE ASSESSEE. THE MATERIAL ON RECO RD AND THE SALE DEEDS SUPPORT THE CONTENTION OF THE ASSESS EE THAT ASSESSEES SHARE WAS OF RS. 1.52 CR AS AGAINST RS. 2.02 CR MENTIONED BY THE ASSESSING OFFICER IN THE REASONS. THE ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT ORDER DID NOT MAKE ANY ADDITION OF RS. 1,49,440/- WITH THE AI D OF SECTION 40(A)(IA) OF THE ACT. THEREFORE, CONSIDERI NG THE 12 FACTS OF THE CASE IN THE LIGHT OF THE ABOVE JUDICIA L PRONOUNCEMENTS, IT IS CLEAR THAT THE ASSESSING OFFI CER HAS REOPENED THE ASSESSMENT MERELY ON THE BASIS OF CHAN GE OF OPINION AND BY RECORDING THE SAME FACTS IN THE REAS ONS FOR THE RE-OPENING OF THE ASSESSMENT. THUS, THERE IS N O FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL THE FACTS AT ORIGINAL ASSESSMENT STAGE. THE ASSESSING OFFICE R WANTED TO ENHANCE THE VALUE OF THE LONG TERM CAPITA L GAIN AS PER SECTION 50C(1) OF THE ACT AND THE SAME FACTS WERE CLEAR FROM THE COPIES OF THE SALE DEED FILED ON REC ORD OF THE ASSESSING OFFICER ALSO. THEREFORE, ACTION OF T HE SUBSEQUENT ASSESSING OFFICER IS NOT CORRECT. THE SUBSEQUENT ASSESSING OFFICER IS NOT SITTING IN APPE AL AGAINST ORIGINAL ASSESSMENT ORDER. THEREFORE, HE H AS NO AUTHORITY TO COMMENT UPON THE QUASI JUDICIAL ORDER PASSED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT MEREL Y ON CHANGE OF OPINION AND AS SUCH THE ORDER OF THE ASSE SSING OFFICER IS LIABLE TO BE SET ASIDE AND QUASHED. 12. WE MAY ALSO NOTE HERE THAT THE ASSESSING OFFICE R ON THE SAME MATTER IN ISSUE ISSUED A NOTICE UNDER SECT ION 154/155 OF THE ACT DATED 01.09.2011 GIVING THE SAME DETAILS OF LONG TERM CAPITAL GAIN IN RESPECT OF THE PROPERTY IN QUESTION AND NOTED THAT THE INCOME IS SHORT ASSE SSED BY RS. 1,31,53,526/- AND THAT THE AMOUNT OF RS. 1,49,440/- IS REQUIRED TO BE ADDED BACK UNDER SECTI ON 40(A)(IA) OF THE ACT. ON COMPARISON OF THE REASONS 13 RECORDED UNDER SECTION 148 OF THE ACT WITH NOTICE U NDER SECTION 154/155 OF THE ACT, IT IS CLEAR THAT SAME F ACTS AND REASONS ARE RECORDED IN NOTICE UNDER SECTION 148 OF THE ACT AS WELL AS NOTICE UNDER SECTION 154 OF THE ACT. THE ASSESSEE FILED A REPLY DATED 19.09.2011 IN RESPONSE TO THE NOTICE UNDER SECTION 154 OF THE ACT AND EXPLAINED T HAT THE PROPERTY IN QUESTION IS DISPUTED PROPERTY SINCE ITS PURCHASE. THE ASSESSEE AND OTHER CO-OWNERS CANNOT GET THE FULL PROPERTY REGISTERED IN THEIR OWN NAMES DUE TO THE DISPUTE AMONGST THE SELLERS FAMILY IN 2003 WHICH EX ISTS TILL DATE. IT WAS ALSO STATED THAT THE AMOUNT OF R S. 1,49,440/- WAS PAID TO 9 PERSONS AND HENCE, TDS WAS NOT REQUIRED TO BE DEDUCTED, SO THERE IS NO VIOLATION O F SECTION 40(A)(IA) OF THE ACT. THE ASSESSEE ALSO EXPLAINED THAT SECTION 50C IS HIGHLY DEBATABLE ISSUE AND THERE IS NO MISTAKE APPARENT ON RECORD. THE ASSESSING OFFICER DROPPED THE PROCEEDINGS UNDER SECTION 154 OF THE AC T VIDE ORDER-SHEET ENTRY DATED 23.09.2011. THE SAID ORDER -SHEET READS AS UNDER : KEEPING IN VIEW THE MISTAKE AND REPLY FILED BY THE ASSESSEE, SINCE IT BEING A MISTAKE NOT APPARENT FROM RECORD, 154 PROCEEDINGS ARE HEREBY FILED. NOTICE UNDER SECTION 148 ISSUED AFTER RECORDING THE REASONS. IT IS, THEREFORE, CLEAR THAT THE ASSESSING OFFICER ON THE SAME REASONS WHICH HAVE BEEN RECORDED UNDER SECTION 154 OF THE ACT, DROPPED THE PROCEEDINGS AGAINST THE ASS ESSEE 14 AND ON THE SAME REASONS RECORDED THE REASONS UNDER SECTION 148 OF THE ACT FOR RE-OPENING OF THE ASSESS MENT. 13. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DE CISION OF THE MADRAS HIGH COURT IN THE CASE OF STERILITE INDUSTRIES (INDIA) LTD. V ACIT REPORTED IN 2011(12) TMI 378 DATED 19.12.2011 IN WHICH IT WAS HELD AS UNDER : THERE CANNOT BE TWO PARALLEL PROCEEDINGS ON THE SE LF SAME ISSUE AS ONE BASED ON THE VIEW THAT THERE WERE MATE RIALS AVAILABLE ON RECORD WHICH WARRANTED EXERCISE OF JUR ISDICTION UNDER SECTION 154 AND THE OTHER INITIATED UNDER SEC TION 147 THAT THERE WAS ESCAPEMENT OF INCOME FROM TAX ON ACC OUNT OF THE FAILURE OF THE ASSESSEE FROM DISCLOSING THE FUL L AND CORRECT PARTICULARS - NOTICE U/S 148 QUASHED. 14. THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF BERGER PAINTS INDIA LTD. VS ACIT 322 ITR 369 HELD AS UNDER : HELD, (I) THAT THE WRIT PETITION WAS MAINTAINABLE. MO REOVER IN THIS CASE WHERE THE WRIT PETITION HAD BEEN ENTERTAINED AND KEPT PENDING FOR ABOUT SIX YEARS AND DIRECTIONS ISSUED F OR FILING OF AFFIDAVITS, THE COURT WAS NOT INCLINED TO DECLINE RE LIEF ONLY ON THE GROUND OF EXISTENCE OF AN ALTERNATIVE REMEDY. (II) THAT THE REASSESSMENT NOTICE HAD BEEN ISSUED FO R VIRTUALLY THE SAME REASON FOR WHICH RECTIFICATION PROCEEDINGS HAD EA RLIER BEEN INITIATED BUT DROPPED. THE ASSESSING OFFICER HAD NOT DISCLOSED ANY NEW MATERIAL FOR REOPENING ASSESSMENT. THE NOTIC E FOR REASSESSMENT WAS NOT VALID AND WAS LIABLE TO BE QUASH ED. 15. CONSIDERING THE ABOVE DISCUSSION, IT IS CLEAR T HAT REASONS U/S 148 HAVE BEEN RECORDED VIRTUALLY ON THE SAME REASONS FOR WHICH RECTIFICATION PROCEEDINGS UNDER S ECTION 154 HAD EARLIER BEEN INITIATED BUT DROPPED. THE AS SESSING 15 OFFICER HAD NOT DISCLOSED ANY NEW MATERIAL FOR RE-O PENING OF THE ASSESSMENT, THEREFORE, ASSESSING OFFICER CAN NOT BE ALLOWED TO HOLD TWO PARALLEL PROCEEDINGS ON THE SAM E ISSUE. BOTH THE ABOVE JUDGEMENTS CLEARLY APPLY TO THE FACTS OF THE CASE AND AS SUCH ON THIS REASON ALSO, THE RE- ASSESSMENT COULD NOT SURVIVE IN THIS CASE. ON THIS REASON ALSO, THE RE-ASSESSMENT ORDER IS LIABLE TO BE SET A SIDE AND QUASHED. 16. IN THIS CASE, IT IS ADMITTED FACT THAT ASSESSIN G OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT DATED 19.09.2011, HOWEVER THE ASSESSING OFFICER RECORDED THE REASONS FOR RE-OPENING OF THE ASSESSMENT UNDER SECT ION 148 OF THE ACT ON 23.09.2011. SECTION 148(2) OF TH E ACT PROVIDES THAT THE ASSESSING OFFICER SHALL, BEFORE ISSUING ANY NOTICE UNDER THIS SECTION, RECORD HIS REASONS F OR DOING THE SAME . HOWEVER, IN THE PRESENT CASE, ASSESSING OFFICER ISSUED THE NOTICE UNDER SECTION 148 OF THE ACT DATED 19.09.2011 PRIOR TO RECORDING OF THE REASONS UNDER SECTION 148 OF THE ACT. THEREFORE, THE NOTICE ISSUE D UNDER SECTION 148 OF THE ACT IS WHOLLY NULL AND VOID AND LIABLE TO BE QUASHED BECAUSE IT WAS NOT IN CONSONANCE WITH TH E PROVISIONS CONTAINED UNDER SECTION 148(2) OF THE AC T. THE LD. DR SUBMITTED THAT THE NOTICE UNDER SECTION 148 HAS BEEN SERVED UPON ASSESSEE ON 23.09.2011 AND THERE M AY BE A TYPOGRAPHICAL ERROR IN THE NOTICE UNDER SECTIO N 148 OF THE ACT. HOWEVER, NO MATERIAL OR EVIDENCE HAS BEEN PRODUCED ON RECORD TO JUSTIFY SUCH A CONTENTION. 16 THEREFORE, CONTENTION OF LD. DR IS REJECTED. IN VI EW OF THE ABOVE, IT IS CLEAR THAT SINCE NOTICE UNDER SECTION 148 HAVE BEEN ISSUED PRIOR TO RECORDING OF THE REASONS, THER EFORE, ENTIRE RE-ASSESSMENT PROCEEDINGS HAVE BEEN VITIATED AND THE SAME ARE NULL AND VOID AND LIABLE TO BE QUASHED . 17. CONSIDERING THE ABOVE DISCUSSION, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND QUASH THE RE-OP ENING OF THE ASSESSMENT UNDER SECTION 148 OF THE ACT. RESULTANTLY, ALL ADDITIONS WOULD STAND DELETED. SI NCE WE HAVE QUASHED THE RE-OPENING OF THE AT UNDER SECTION 148 OF THE ACT, THEREFORE, WE DO NOT PROPOSE TO DECIDE ADDITIONS ON MERIT BECAUSE THE SAME ARE LEFT WITH ACADEMIC IN NATURE. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH SEPT., 2015. FIT FOR PUBLICATION SD/- SD/- (RANO JAIN) (BHAVNESH SAIN I) ACCOUNTANT MEMBER JUDICIAL MEMB ER