Reopening of the assessment is unsustainable if no reason exists to believe that the income chargeable to tax has escaped assessment

Amar R Shanbhag Vs ITO (Mumbai High Court)- There was inordinate delay in obtaining commencement certificate and, therefore, the petitioner once again terminated the Development Agreement dated 17th September 2004. Thereupon, Matoshree Properties filed a Suit in the High Court being Suit No. 2863 of 2010, which was ultimately settled on 2nd May 2011, wherein the consideration was enhanced from Rs.4 crores to Rs. 7.5 crores.

As per the consent terms filed on 2nd May 2011, the amount of Rs. 7.5 crores are to be paid in instalments up to 31st December 2011. It is also on record that the commencement certificate in the present case was issued on 29th December 2009. In these circumstances, in our opinion, it cannot be said that there was any reason to believe that income chargeable to tax has escaped assessment in assessment year 2005­-06 so as to initiate reassessment proceedings under Section 147 read with Section 148 of the Act. So long as the consent terms filed on 2nd May 2011 hold the field, the question of bringing to tax the capital gains under the Development Agreement dated 17th September 2004 in assessment year 2005-­06 does not arise at all.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

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