No reopening merely on the basis of Assessment of other co­-sharer

Kalpana Chimanlal Shah Vs ITO (Gujarat High Court)

The Assessing Officer examined the petitioner’s declaration of sale of immovable property and resultant loss, which she claimed. The Assessing Officer called for the purchase and sale deeds as also supporting evidence for computation of capital gain. The assessee produced such documents and the approved valuer’s report assessing the value of property as on 1^st April 1981. The Assessing Officer being satisfied with such material, made no additions in the order of assessment. The impugned notice was issued beyond the period of four years from the end of relevant assessment year. Such notice must be quashed on the ground of change of opinion as well as no failure on the part of the assessee to disclose truly and fully all material facts. As noted, the entire issue was examined by the Assessing Officer in the original scrutiny assessment. Any attempt on his part now to re-examine the issue would amount to change of opinion.

Further, neither from the reasons nor from any other material on record, we could gather that there is any failure on the part of the assessee to disclose truly and fully all material facts. The petitioner had disclosed the sale of land; her share in the property and also presented her computation of capital gain arising out of such transaction. If the Assessing Officer was of the opinion that such computation was not correct, he could have disputed the same in the manner prescribed under the law. While framing the assessment, he neither disputed computation nor the report of approved valuer presented by the petitioner. He now desires to reopen the assessment on the ground that in case of a co­-sharer of the same property, as the Assessing Officer had disputed the value and referred the question to DVO and on the basis of valuation so presented, he computed the capital gain. The present respondent ie., the Assessing Officer of the petitioner now wishes to adopt such figures in case of the petitioner and desires to project one ­eighth of the value so adopted, as her receipts from the sale of property and for he wishes to reopen the assessment, which is wholly impermissible.