LATE SHRI CHHATRASINH J.VAGHELA THRU L/H KAMLABEN C.VAGHELA,GANDHINAGAR vs. THE INCOME TAX OFFICER,WARD-1,, GANDHINAGAR
Income Tax Appellate Tribunal, TRIBUNAL
Before: BEFORE BEFORE BEFORE DR. B DR. B DR. B DR. B.R.R. KUMAR KUMAR KUMAR KUMAR, , , , VICE VICE VICE VICE-SHRI SIDDHARTHA NAUTIYAL SHRI SIDDHARTHA NAUTIYAL SHRI SIDDHARTHA NAUTIYAL SHRI SIDDHARTHA NAUTIYALLate Shri Chhatrasingh J. Vaghela, Through L/H Kamlaben C. Vaghela, At & Post : Sargasan, Sargasan, Gandhinagar-382421
O R D E R
O R D E R
O R D E R
PER PER PER PER DR. B.R.R. KUMAR, VICE DR. B.R.R. KUMAR, VICE DR. B.R.R. KUMAR, VICE DR. B.R.R. KUMAR, VICE-PRESIDENT PRESIDENT PRESIDENT PRESIDENT:-
This appeal has been filed by the assessee against the order dated
05.09.2017 passed by the Ld. Commissioner of Income-Tax (Appeals),
Gandhinagar, Ahmedabad (‘Ld. CIT(A)’ in short), under Section 250 of the Income- tax Act, 1961 (‘the Act’ in short), for Assessment Year 2012-13. 2. The assessee has raised following grounds in this appeal :-
“(1) That on facts, and in law, the learned CIT(A) has grievously erred in not giving sufficient and reasonable opportunity of hearing to the appellant and in deciding the appeal ex-parte.
(2) That on facts, and in law, the learned CIT(A) has grievously erred in confirming the addition of Rs.6,32,995/- made towards computation of LTCG by adopting a different FMV as on 01/04/1981. (2) That on facts, and in law, the learned CIT(A) has grievously erred in confirming the addition of Rs. 28,94,410/- made by disallowing the claim of deduction u/s 54B of the Act.
Asst. Year : 2012-13
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(3) That on facts, in law, and on evidence on record, the entire addition ought to have been deleted, as prayed for.”
In this case, the assessee, Late Shri Chhatrasinh J. Vaghela, was a co-owner of agricultural land situated at Saragasan, Gandhinagar, which was sold on 14.10./2011 for a total consideration of Rs. 11,25,62,000/- along with other co- owners. The return of income was filed on 30.03.2014 under section 139(4) of the Act, within the permissible time limit under the law then applicable. The Assessing Officer issued notice under section 148 of the Act dated 19.12.2014 for AY 2012-13 on the grounds that the assessee had not filed the return of income and that verification of capital gain and other income was required. Pursuant to this, the Assessing Officer completed the assessment under section 143(3) r.w.s. 147 of the Act by computing Long Term Capital Gain (LTCG) and denying deduction u/s 54B of the Act. The CIT(A) confirmed the additions made by the Assessing Officer ex-parte, without granting sufficient opportunity to the legal heir of the deceased assessee.
Heard the arguments of both the parties and perused the material available on record.
1 We find that the notice issued under section 148 of the Act reads as under:-
“Date : 19/12/2014
……..
Whereas I have reason to believe that your income/the income of Α.Υ. 2012-
13 in respect of which you are assessable chargeable to tax for the assessment year 2012-13 has escaped assessment within the meaning of Section 147 of the Income Tax Act, 1961
I, therefore, propose to assess/reassess the income/re-compute loss/depreciation allowance for the said assessment year and I hereby require to deliver to me within 30 days from the date of service of this notice, a return in the prescribed form of your income/the income of AY 2012-13 in respect of which you are assessable chargeable to tax for the said assessment year.
Asst. Year : 2012-13
- 3– (G.G.THAKER)
INCOME TAX OFFICER,
WARD-1 GANDHINAGAR
Encl.: Reason Recorded.”
2 Reasons recorded before issue of notice u/s 148 of the IT Act, 1961 is as under:-
1 Name
:
Shri Chhatrasinh J. Vaghela
Address
:
At & Post Saragasan, Tal & Dist
Gandhinagar
2. Permanent Number Account:
:
3. AY
:
2012-13
As per data available with this office, the assessee. Shri Chhatrasinh J.
Vaghela has sold the immovable property (Non Agriculture Land) situated at Block/Survey No 394's 17503 Sr. Mtr., TP Scheme No. 7's Final Plot No.97s
11363 Sr. Mtr. Village Saragasan, Dist. Gandhinagar along with other 6 co owners for Rs 11,25,62,000/- and the same is registered with SR-
Gandhinagar GDR12155/1/26/2011 (page 1 to 26) on 14/10/2011. The assessee has not filed the return of income, therefore with a view to verifying calculation of capital gain and other income. Therefore, I have reason to believe that the income chargeable to tax had escaped assessment to that extent, for A.Y 2012-13, within the meaning of Section 147 of the Act.
Hence, in my opinion, this is a fit case for re-opening of assessment u/s.147
of the I.T. Act, 1961. Date: 19/12/2014 (G.G.THAKER)
INCOME TAX OFFICER,
WARD-1 GANDHINAGAR”
Asst. Year : 2012-13
- 4–
Asst. Year : 2012-13
- 5–
Asst. Year : 2012-13
- 6–
3 We find that the primary reason recorded by the Assessing Officer for reopening the case was that the assessee had not filed a return of income despite having sold immovable property. However, it is an undisputed fact on record that the assessee had already filed his return of income on 30.03.2014 under section 139(4), prior to the issuance of notice under section 148 dated 19.12.2014. The capital gains have been duly computed as per the return filed. Therefore, the foundational juri ictional fact stated by the Assessing Officer that no return was filed is factually incorrect. It is a settled position of law that if the very basis of reopening is factually incorrect, such reopening is bad in law. Therefore, the reopening of assessment u/s 147 in the present case is invalid and without juri iction, and hence, the assessment liable to be quashed.
4 Since we have already held that the reopening is bad in law and the entire assessment is quashed, grounds challenging the additions on merit become academic in nature and require no adjudication at this stage.
In the result, the appeal of the assessee is allowed.
The order
The order
The order
The order is isis is pronounced i pronounced i pronounced i pronounced in n n n the the the the open open open open Court
Court
Court
Court on on on on 30
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30.09.202
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.2025. (SIDDHARTHA NAUTIYAL
IDDHARTHA NAUTIYAL
IDDHARTHA NAUTIYAL
IDDHARTHA NAUTIYAL)
(DR. B.R.R. KUMAR)
(DR. B.R.R. KUMAR)
JUDICIAL MEMBER
JUDICIAL MEMBER
VICE
VICE
VICE
VICE-PRESIDENT
PRESIDENT
PRESIDENT
PRESIDENT
Ahmedabad; Dated 30.09.2025
**btk
आदेश की ितिलिप अ ेिषत/Copy of the Order forwarded to Copy of the Order forwarded to Copy of the Order forwarded to Copy of the Order forwarded to :
अपीलाथ / The Appellant 2. थ / The Respondent. 3. संबंिधतआयकरआयु / Concerned CIT 4. आयकरआयु(अपील) / The CIT(A)- 5. िवभागीयितिनिध, आयकरअपीलीयअिधकरण, अहमदाबाद/ DR, ITAT, Ahmedabad 6. गाड फाईल/ Guard file.
आदेशानुसार/ BY ORDER,सहायक पंजीकार (Dy./Asstt.