Om Shriniwas Developers Vs ITO (ITAT Pune)
ITAT Pune held that addition by invoking provisions of section 43CA of the Income Tax Act cannot be sustained since the difference between the Stamp Duty Value and agreement value is less than the allowable limit of 5%.
Facts- Assessee is a partnership firm, engaged in the business of builders and developers. Post completion of scrutiny assessment, reassessment proceedings were initiated. During the proceedings u/s.148A of the Act, Assessee submitted that only two flats have been sold at a price which is less than stamp duty value. However, the difference is less than 5%. However, Assessing Officer rejected the contention of the assessee and held that Income chargeable to tax of Rs.2,18,495/- has escaped assessment.
Conclusion- Held that hon’ble Bombay High Court in the case of Mira Bhavin Mehta Vs. ITO held that the information relied upon while issuing notice under Section 148A(b) of the Act also relates to the said flat and entirely contradictory view is taken in the impugned order that the asset sold was short term capital asset and gain arising on transfer of the said flat is short term capital gain. In our view, the reopening of the assessment is purely on the basis of change of opinion of the AO from that held earlier during the course of assessment proceedings. This change of opinion does not constitute justification for assuming that income chargeable to tax has escaped assessment. Respectfully following Hon’ble Bombay High Court, we hold that notice u/s.148 is bad in law. Accordingly, Ground raised by the Assessee is allowed.
