MAHESHCHANDRA CHIMANLAL RAVAL (HUF) V. INCOME TAX OFFICER-WARD 2(2)(3)

SCA No. 21635 of 2016

AI Insights

The case involves Maheshchandra Chimanlal Raval (HUF), the petitioner, who challenged the reopening of his income tax assessment for the Assessment Year 2012-2013 under Section 148 of the Income-tax Act, 1961. The reassessment was based on a difference in the fair market value of an ancestral land sold, as estimated by the petitioner’s registered valuer and the Departmental Valuation Officer (DVO). The petitioner argued that the reopening was illegal as it relied solely on the DVO's report, which was considered an estimate and not a conclusive proof of escaped income. The Revenue defended the reassessment, citing that the original assessment was under Section 143(1) and thus did not involve detailed scrutiny, justifying the reopening. The court, after considering the arguments and the peculiar facts of the case, decided not to entertain the petition and advised the petitioner to seek redress through the appellate authority.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 361535 (HC-GUJARAT)
• Appeal Type: High Court cases
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Assessment Year: 2012-2013
• Other Referred Cases: ACIT v. Thariya Construction Company, Principal Commissioner of Income-tax-2 vs. J.Upendra Construction (P) Limited, Aavkar Infrastructure Company v. Deputy Commissioner of Income-tax, Circle-9, Commissioner of Income-tax v. Puja Prints, Commissioner of Income-tax v. Gauranginiben S. Shodhan, GKN Driveshafts [India] Limited v. Income-tax Officer & Ors., Sunder Carpet Industries v. Income-tax Officer
• Laws Referred To: Income-tax Act, 1961, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S UDHIR M EHTA
• Assessee Lawyers: S N SOPARKAR; B S SOPARKAR
• Keywords: Escape of income; Fair market value; Long Term Capital Gain; Reopening of assessment; Valuation Officer
• Section: 147; 148; 143(1)

Judgement Text

"C/SCA/21635/2016 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21635 of 2016 FOR APPROVAL AND SIGNATURE: HONOURABLE Mr. JUSTICE M.R. SHAH and HONOURABLE Mr. JUSTICE B.N. KARIA ============================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ============================================================= MAHESHCHANDRA CHIMANLAL RAVAL (HUF)....Petitioner(s) Versus INCOME TAX OFFICER-WARD 2(2)(3)....Respondent(s) ============================================================= Appearance : Mr SN SOPARKAR, Sr Advocate with Mr B S SOPARKAR, Advocate for the Petitioner Mr SUDHIR M MEHTA, Advocate for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 ============================================================= CORAM: HONOURABLE Mr. JUSTICE M.R. SHAH and HONOURABLE Mr. JUSTICE B.N. KARIA 25th April 2017 Page 1 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE M.R. SHAH) 1. Draft amendment is allowed. Amendment shall be carried out forthwith. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner-assessee has prayed for issuance of appropriate writ, order and direction to quash and set-aside the impugned Notice issued under Section 148 of the Income-tax Act, 1961 [“the Act” for short] {Annexure “A”}, by which, the Assessing Officer has sought to reopen the assessment for Assessment Year 2012-2013 on the ground that the income chargeable to tax for A.Y 2012-2013 has escaped the assessment within the meaning of Section 147 of the I.T Act. 3. The facts leading to the present Special Civil Application in nutshell are as under : 3.1 That, the petitioner-assessee filed return of income for A.Y 2012-2013 declaring total income at Rs. 8,42,070/= which came to be accepted by the Assessing Officer. That thereafter, by impugned Notice Page 2 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT dated 12th February 2016, the assessment for A.Y 2012- 2013 is sought to be reopened. That, the petitioner asked for the reasons for reopening vide letter dated 25th February 2016. The reasons came to be supplied after approximately nine months vide communication dated 23rd November 2016. The reasons recorded to reopen the assessment for A.Y 2012-2013 read as under : “In this case, the assessee has filed his return of income on 2nd July 2012 declaring total income at Rs. 8,42,070/=. On going through the return of income, it is found that the assessee has shown income of RS. 8,22,245/= under the head of Long term capital gain. It is gathered from the sale deed of land that Mahesh Chimanlal Raval, PAN : AACHM4020Q [having 1/3rd share] along with five co-owners have sold an Agricultural land situated at revenue survey no. 21/A, Paiki 1, T.P No. 70, O.P No. 228, Village Amroli, District Surat for Rs. 6,25,00,000/=. Out of total consideration of sale, assessee has received Rs. 2,06,25,000/= being stake holder of 33.33%. However, on perusal of records, it was also seen that the said land was an ancestral land Page 3 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT and fair market value of land as on 1st April 1981 was estimated at Rs. 77,44,375/= by registered valuer for calculation of long term capital gain. Accordingly, cost of acquisition for share of assessee in the land arrive at RS. 25,22,644/= and after indexation long term capital gain of Rs. 8,22,645/= was shown by the assessee at the time of filing of the return. On perusal of valuation report, it was noticed that the value estimated by registered valuer as on 1st April 1981 was on higher side and in variance with its fair market value. The fair market value of land as on 1st April 1981 as per valuation officer, Surat estimated at Rs. 10,19,250/= as on 1st April 1981. Accordingly, 1/3rd share of LTCG works out to Rs. 1,79,84,633/=. Difference of RS. 1,71,62,388/= [Rs. 1,79,84,633/= - Rs. 8,22,245/= shown as per ROI] has been escaped from the assessment. In view of the above mentioned facts, I have reason to believe that the income of Rs. 1,71,62,388/= has been escaped from the assessment for the reasons of non compliance of provisions of I.T Act on the part of the assessee for the A.Y 2012-2013 within the meaning of Section 147 of the I.T Act. Page 4 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT Therefore, I am satisfied that it is a fit case for reopening the case under Section 147 of the I.T Act.” 3.2 That, the petitioner immediately raised objection against reopening vide communication dated 29th November 2016. That, the said objections came to be disposed of by the Assessing Officer on 16th December 2016, which came to be received by the assessee on 19th December 2016. Immediately, vide communication dated 21st December 2016, the assessee requested not to proceed further with the re-assessment proceedings and not to pass any order by submitting that the petitioner proposes to challenge reopening of the assessment and the decision disposing of the objections. However, without giving any sufficient opportunity/time to the assessee to challenge the reopening of the assessment, immediately on 26th December 2016, the Assessing Officer has passed the re-assessment order/assessment order. At this stage, it is required to be noted that prior to the order of Page 5 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT assessment, the assessee already had preferred a writ petition on 22nd December 2016 and by an ad interim order dated 22nd December 2016, the Assessing Officer was permitted to proceed further with the reassessment proceedings, however, he was restrained from finalizing the reassessing proceedings. However, it appears that the Assessing Officer passed an order of assessment in haste on 26th December 2016. That, by way of draft amendment, the petitioner has challenged the re-assessment/assessment order dated 26th December 2016, as the same has been passed after filing of the present petition. 4. Feeling aggrieved and dissatisfied with the reassessment proceedings and the subsequent assessment order, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 5. Shri S.N Soparkar, learned Senior Advocate has appeared on behalf of the petitioner-assessee and Shri Sudhir Mehta, learned advocate has appeared on behalf Page 6 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT of the respondent-Revenue. 5.1 Shri SN Soparkar, learned counsel for the assessee has vehemently submitted that the reopening of the assessment for A.Y 2012-2013 is absolutely bad in law and illegal, and therefore, deserves to be quashed and set-aside. It is further submitted by Shri Soparkar, learned counsel for the petitioner that from the reasons recorded to reopen the assessment for A.Y 2012-2013, it appears that the respondent had issued a notice to make addition only on the ground that the fair market value as on 1st April 1981 of the land sold by the petitioner is valued by the DVO on the lower side compared to the value determined by the registered Valuer and this difference in the fair market value has increased the indexed cost of the asset of the petitioner leading to lesser capital gain, and hence, such indexed cost of the asset needs to be reduced resulting into higher capital gain which needs to be added to the income of the assessee. It is submitted that the aforesaid reason recorded to reopen the assessment is Page 7 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT ex facie bad, illegal and erroneous. It is submitted that no reopening of assessment is permissible/possible based solely on the report of Valuation Officer. 5.2 It is further submitted that solely on the basis of and/or solely relying upon the report of DVO, the reopening of the assessment is not permissible in as much as, the report of DVO can be said to be an estimate and it cannot be used to draw an inference that the income has escaped the assessment. It is submitted that as such there is no independent subjective satisfaction of the Assessing Officer to form an opinion that the income chargeable to tax has escaped the assessment; more particularly on the ground stated in the reasons recorded to reopen the assessment. In support of his above submissions, Shri SN Soparkar, learned Sr. Advocate has relied upon the decisions of the Hon’ble Supreme Court in the case of ACIT v. Thariya Construction Company, [2010] 328 ITR 515 [SC] and in the case of Principal Commissioner of Income-tax-2 vs. J.Upendra Page 8 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT Construction (P) Limited, [2015] 377 ITR 383 [Gujarat]. Shri S.N Soparkar, learned counsel for the assessee has also placed reliance upon a decision of Division Bench of this Court in the case of Aavkar Infrastructure Company v. Deputy Commissioner of Income-tax, Circle-9, reported in [2016] 67 Taxmann.com 39 [Gujarat]. 5.3 It is further submitted by Shri Soparkar, learned counsel for the petitioner that in the present case as such the reference to DVO is possible only in the circumstances where in the opinion of the respondent, the value of the asset is lesser reported and not over reported. It is further submitted by learned Senior Advocate that in the present case, the petitioner has adopted the value determined by the registered Valuation Officer, and as such, the Assessing Officer has not pointed out any error in such report and merely proceeded on the value arrived at by the DVO. It is further submitted by Shri Soparkar, learned Sr. Advocate appearing for the petitioner that as held by Page 9 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT the Division Bench of Bombay High Court in the case of Commissioner of Income-tax v. Puja Prints, reported in [2014] 360 ITR 697 [Bombay], reference to the DVO can be made only when the value adopted by the assessee is less than the fair market value and if the value of the asset shown by the assessee is much more than the fair market value, reference to the Valuation Officer could not be made. It is submitted that therefore also, when the reference to the DVO itself was not permissible, considering the pre-amended Section 55A of the Income-tax Act, the Assessing Officer ought not to have reopened the assessment, relying solely upon the valuation of DVO and that too without application of independent mind. 5.4 It is further submitted by Shri Soparkar, learned counsel appearing on behalf of the petitioner that in the present case, even the order of assessment has been passed in hot haste, without giving sufficient opportunity to the petitioner assessee to challenge the re-opening proceedings, immediately after the Page 10 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT objections raised by the assessee were over-ruled by the Assessing Officer. 5.5 It is submitted by Shri Soparkar, learned counsel for the petitioner that Hon’ble Supreme Court in the case of GKN Driveshafts [India] Limited v. Income- tax Officer & Ors., reported in [2003] 259 ITR 19 had specifically directed that when the notice under Section 148 of the Act is issued and the noticee files a return and seeks reasons for issuance of the notice, the Assessing Officer is bound to furnish the reasons within a reasonable time. It is submitted that thereafter, the Division Bench of this Court in the case of Commissioner of Income-tax v. Gauranginiben S. Shodhan, reported in [2014] 367 ITR 238 [Gujarat] has reiterated the view by holding that the Assessing Officer shall supply the reasons recorded by him within thirty days of the filing of the objection by the assessee without waiting for the assessee to demand such reasons. It is submitted that in the present case, the petitioner requested for furnishing the reasons Page 11 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT recorded by the Assessing Officer as early as on 25th February 2016. However, the respondent took undue time and supplied the reasons on 23rd November 2016 ie., after a delay of approximately 9 months. It is submitted that even thereafter also, despite earlier directions issued by the Division Bench of this Court in case of Commissioner of Income-tax v. Gauranginiben S. Shodhan [Supra], after disposing of the objections, no sufficient time was given to the petitioner to challenge the reopening of assessment/ re-assessment proceedings and the order disposing of the objections and in the present case, in absolute haste, the Assessing Officer had passed an order under Section 147 of the Act on 26th December 2016 ie., after the present petition was filed challenging the re- assessment proceedings. It is submitted that therefore, the impugned assessment order under Section 147 of the Act is absolutely bad in law and in breach of the directions issued by this Court in the case of Gauranginiben S. Shodhan [Supra], and therefore, once Page 12 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT it is found that the reopening of the assessment is bad in law and illegal, the order of assessment deserves to be quashed and set-aside. Making the above submissions, it is requested to allow the present petition. 6. The present petition is vehemently opposed by Shri Sudhir Mehta, learned advocate for the Revenue. 6.1 It is vehemently submitted by learned advocate Shri Mehta appearing on behalf of the Revenue that as now the order of assessment is already passed, and therefore, the petitioner would have a statutory alternative remedy available by way of an appeal before the learned CIT [A], and therefore, the present petition may not be entertained. 6.2 It is further submitted by Shri Sudhir Mehta, learned counsel for the Revenue that even otherwise, in the facts and circumstances of the case, it cannot be said that the reopening of the assessment is bad in law. It is further submitted that in the present case, the reopening of the assessment for A.Y 2012-2013 is Page 13 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT within a period of four years. It is submitted that the original assessment was under Section143 [1] of the Act, and therefore, there was no detailed scrutiny of the claim made by the assessee. It is submitted that therefore, the Assessing officer is justified in reopening the assessment for A.Y 2012-13. It is further submitted by Shri Sudhir Mehta that even otherwise, the DVO’s report can be a piece of information on the basis of which, the Assessing Officer is justified in reopening the assessment, which was as such under Section 143 [1] of the Act. 6.3 Shri Sudhir Mehta, learned advocate for the Revenue has heavily relied upon a decision of Allahabad High Court in the case of Sunder Carpet Industries v. Income-tax Officer, reported in [2010] 324 ITR 417 [Allahabad] in support of his submissions that if the true facts are not recorded in the books of account and the fair market value has not been disclosed, reference can be made to the DVO. It is submitted that in the said decision, it is held that if the Page 14 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT valuation report discloses higher investments in the construction which had not been disclosed in the books of account, it can be said that there was escapement of income. It is submitted that in the aforesaid decision, it is also held that the Departmental Valuer’s report constituted material for entertaining a belief of escaped income in the years under consideration, and therefore, re-assessments were held to be justified. 6.4 Now so far as contention on behalf of the assessee that the Assessing Officer had passed the assessment order under Section 147 of the Act in haste is concerned, it is submitted that as the assessment was getting time barred on 31st December 2016, the Assessing Officer had no option but to finalize re- assessment proceedings, and therefore, re-assessment proceedings came to be completed on 26th December 2016 – on the basis of material available on the record and in absence of any clarification/ explanation submitted by the assessee. It is further submitted by learned counsel for the Revenue that in the present Page 15 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT case, the assessment proceedings were finalized by the Income-tax Officer, Ward-2 [2](3), Surat and in the case of Ashwinkumar Chimanla Raval – brother of the petitioner and owner of the land in question. It is submitted that according to ITO, Ward 2 [2](3), Surat vide communication dated 28th June 2015 intimated that the assessee alongwith other five co-owners have sold an agricultural land for a sale consideration of Rs. 6,25,00,000/=. The said Assessing Officer also informed that out of the total consideration of sale, the assessee received Rs. 2,06,25,000/= being stake-holder of 33%. It is submitted that on perusal of the records, it was also seen that the said land in question was ancestral land and the fair market value as on 1st April 1991 was estimated at Rs. 77,44,375/= by the registered Valuer for calculation of long term capital gain. Accordingly, the cost of acquisition of the share of the assessee in the land in question was arrived at Rs. 25,22,644/= and after indexation, the long term capital gain was arrived at Rs. 8,22,245/= which was shown by the assessee at Page 16 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT the time of filing of the return. It is submitted that on perusal of the Valuation Report, it was noticed that the value estimated by the registered valuer as on 1st April 1981 was on the higher side and in variance with its fair market value, and the fair market value of the land as on 1st April 1981; as per the DVO, Surat estimated at Rs. 10,19,250/= as on 1st April 1981, accordingly, the one-third share of long term capital gain in the case of the assessee works out to RS. 1,79,84,633/=, and therefore, the difference of Rs. 1,71,62,388/= has escaped the assessment. It is submitted that therefore, the Assessing Officer had a valid reason to believe that the income of Rs. 1,71,62,388/= has escaped the assessment within the meaning of Section 147 of the Act. It is submitted that notice under Section 148 of the Act has been rightly issued. It is submitted that on identical issue in the case of Shri Ashwinkumar Chimanlal Raval for A.Y 2012-2013, he has also one- third holding in the same property on which assessment was finalized by the ITO, Ward 2 [2](1), Page 17 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT Surat which was challenged before the CIT [A], Surat and the similar addition has been confirmed by the learned CIT [A], Surat vide Order dated 29th August 2016. It is submitted that therefore in the facts and circumstances of the case, the Assessing Officer is justified in reopening the assessment for A.Y 2012-2013 on considering DVO’s report. It is submitted that therefore, the decisions relied upon by the learned counsel for the petitioner-assessee shall not be applicable to the facts of the case on hand. Making the above submissions, it is requested to dismissed the present petition. 7. In rejoinder, Shri S.N Soparkar, learned counsel for the petitioner-assessee has vehemently submitted that the reference to the assessment order of Shri Ashwin Chimanlal Raval is ill founded because in that case, the concerned assessee had not given any reply to the show cause notice for making addition on the ground of difference in the value as on 1st April 1981. It is submitted that even in the reasons recorded, there is Page 18 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT no reference to the assessment order of Shri Ashwinkumar Chimanlal Raval, and therefore, the respondent now cannot take recourse to improve or modify the reasons recorded. It is submitted that the reasons once recorded has to be seen and evaluated in the same form and no modification or improvement is allowed. Making the above submissions, it was requested to allow the present petition. 7.1 Heard learned advocates appearing on behalf of respective parties at length. 8. At the outset, it is required to be noted that in the present case, action of the Assessing Officer in reopening the assessment for A.Y 2012-2013 and also the subsequent order under Section 147 of the Act dated 26th December 2016 is under challenge. 9. Having heard learned advocates appearing on behalf of the respective parties, perusing the material on the record and even the reasons recorded to reopen the assessment for A.Y 2012-2013, it appears that considering the difference in the fair market value Page 19 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT determined by registered valuer of the assessee and the D.V.O, Surat, it has been found that the value estimated by the registered valuer of the assessee as on 1st April 1981 was on the higher side and in variance with the fair market value which has resulted into escapement of income from assessment. 9.1 It is true that in the present case, there was a delay in supplying the reasons recorded by the Assessing Officer and thereafter the assessment order has been passed on 26th December 2016. However, it is required to be noted that as such, the last date for completing the assessment was 31st December 2016 otherwise, the assessment was getting time bared and therefore, the Assessing Officer had no other alternative but to pass an order of assessment under Section 147 of the Act on 26th December 2016. Therefore, prima facie, it can be said that in the present case, the assessee had not followed the time bound programme/limit prescribed by this Court in the case of Commissioner of Income-tax v. Puja Prints [Supra] and Page 20 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT in the case of Commissioner of Income-tax v. Gauranginiben S. Shodhan [Supra]. However, considering the affidavit-in-reply and material on the record so also the order of assessment, it appears that in the case of brother of the assessee and the co-owner of the very land ie., in the case of Shri Ashwinkumar Chimanlal Raval, the Assessing Officer had determined/estimated, and/or considered the fair market value as on 1st April 1981 at Rs. 10,19,250/= and consequently, the assessment order has been passed in the case of co-owner of the very land in question estimating the fair market value at RS. 10,19,250/= as on 1st April 1981 and accordingly, the long term capital gain has been worked out. It is reported that in the case of co-owner of the very land in question ie., Shri Ashwinkumar Chimanlal Raval, the learned CIT [A] dismissed the appeal preferred by the said assessee, and therefore, the fair market value which was applied/estimated in the case of co-owner is required to be considered and applied by the Assessing Page 21 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT Officer, even in the case of the assessee – being the co- owner of the very land in question, since there cannot be two different estimations of the fair market value as on 1st April 1981 with respect to the same land but in the case of different assessees/co-owners. Under the circumstances, now when the order of assessment is already passed, in the aforesaid peculiar facts of the case, we refuse to entertain the present petition challenging the order of assessment under Section 147 of the Act and relegate the petitioner to prefer the appeal before the CIT [A] against the order of assessment under Section 147 of the Act and keeping all the contentions/defence which would be available to the parties; more particularly available to the petitioner-assessee. If at this stage, the assessment order under Section 147 of the Act in the case of the petitioner assessee is set-aside, in that case, the same shall affect the case of the Revenue in case of the co- owner of the very land in question. As observed hereinabove, as such there cannot be two estimations Page 22 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT of the fair market value as on 1st April 1981 in respect of the very land in question, but in case of different assessee/co-owner. 9.2 In view of the above peculiar facts and circumstances, without expressing anything further on merits in favour of either parties, we relegate the petitioner to avail alternative statutory remedy available by way of appeal before the CIT [A] against the order of assessment under Section 147 of the Act. As and when such appeal is preferred, the same is directed to be considered in accordance with law and on merits. All the contentions/defences which will be available to the petitioner are kept open to be considered by the appellate authority in accordance with law on its own merits and not entertaining the present petition challenging the impugned order of assessment may not be construed that we we have expressed anything on merits and the appellate authority to consider the appeal on merits in accordance with law. Page 23 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION C/SCA/21635/2016 CAV JUDGMENT 9.3 At the cost of repetition, we state that we have not expressed anything on merits in favour of either parties. For the reasons stated hereinabove, we refuse to entertain the present petition and relegate the petitioner-assessee to avail statutory remedy available by way of appeal before the CIT [A]. 10. Accordingly, the present petition stands dismissed with the above liberty. Notice discharged. [M.R Shah, J.] [B.N Karia, J.] Prakash Page 24 of 24 Downloaded on : Tue Jun 03 15:30:06 IST 2025 Uploaded by P.B.TALREJA(HC00154) on Thu May 11 2017 2017:GUJHC:15749-DB NEUTRAL CITATION "