Case Law Details
Giraben Atulbhai Shah Vs ACIT (Gujarat High Court)
The objections raised by the assessee came to be disposed of by the Assessing Officer vide his order dated 16th November 2021 stating that the assessee sold immovable property for an aggregate value of Rs.52 Lakh and the same was not offered for tax in the return of income.
We find merit in the contention raised by Mr. Dave that the reasons assigned by the Assessing Officer for reopening of the assessment for the relevant year are factually incorrect. This is apparent from page : 35 of the paper book, which is a part of the return of income filed by the writ applicant. In column No.8 of the same, we find reference of Rs.52 Lakh towards full value of consideration. Although Mr. Bhatt tried to say something as regards the cost of acquisition with indexation, yet we are of the view that factually there is no foundation for the Revenue to reopen the assessment on the ground as alleged in the reasons assigned to the writ applicant – assessee.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1 By this writ application under Article 226 of the Constitution of India – an assessee has prayed for the following reliefs:
“a) To quash and set aside the notice u/s. 148, dated 31.03.2021 for A.Y. 2016-17 at Annexure – A;
b) pending admission, hearing and final disposal of this petition, this Hon’ble Court may kindly be pleased to stay and suspend operation and implementation of notice u/s. 148, dated 31.03.2021 for A.Y. 2016-17 at Annexure-A;
c) Any other and further relief, which is just and proper, may kindly be granted as may be deemed expedient by this Hon’ble Court in
the facts and circumstances of the case.
d) Award cost of the present petition.”
2 The subject matter of challenge in the present writ applicant is the notice issued by the respondent under Section 148 of the Income Tax Act, 1961 (for short, “the Act, 1961”) dated 31st March 2021 seeking to reopen the assessment for the A. Y. 2016-17 under Section 147 of the Act, essentially on the ground that the assessee failed to offer an amount of Rs.52 Lakh for taxation while filing return of income for the year under consideration. The amount, which the Revenue is talking about, is the amount said to have been received by the assessee in connection with sale of a property. In the reasons assigned by the Assessing Officer, it has been stated that the assessee had not shown the sale consideration of Rs.52 Lakh and thereby had failed to offer the same for tax in the return of income filed for the year under consideration.
3 The assessee filed his objections vide letter dated 27th July 2021 pointing out that the reasons assigned for the reopening is factually incorrect.
4 The objections raised by the assessee came to be disposed of by the Assessing Officer vide his order dated 16th November 2021 stating that the assessee sold immovable property for an aggregate value of Rs.52 Lakh and the same was not offered for tax in the return of income.
5 We have heard Mr. Jaimin Dave, the learned counsel appearing for the writ applicant – assessee and Mr. M. R. Bhatt, the learned Senior Counsel assisted by Mr. Karan Sanghani, the learned counsel appearing for the Revenue.
6 We find merit in the contention raised by Mr. Dave that the reasons assigned by the Assessing Officer for reopening of the assessment for the relevant year are factually incorrect. This is apparent from page : 35 of the paper book, which is a part of the return of income filed by the writ applicant. In column No.8 of the same, we find reference of Rs.52 Lakh towards full value of consideration. Although Mr. Bhatt tried to say something as regards the cost of acquisition with indexation, yet we are of the view that factually there is no foundation for the Revenue to reopen the assessment on the ground as alleged in the reasons assigned to the writ applicant – assessee.
7 In view of the aforesaid, this writ application succeeds and is hereby allowed. The impugned notice dated 31st March 2021 for the A.Y. 2016 – 17 is hereby quashed and set aside.
