SMT SANTI SARKAR,KOLKATA vs. ITO, WD-37(2), KOLKATA, KOLKATA

Per Shri Mahavir Singh, JM: This appeal by assessee is arising out of order of CIT(A)-12, Kolkata vide Appeal No. 13/CIT(A)-12/Kol/Wd.37(2)/2014-15 dated 30.03.2015. Assessment was framed by ITO, Ward-37(2), Kolkata u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2006-07 vide his order dated 02.09.2008.

2 ITA No.797/Kol/2015 Smt. Santi Sarkar, AY 2006-07 “Return was submitted by the Assessee on 22.06.2006 showing the total income of Rs.1,60,050/- and the return was assessed u/s. 143(3) on 02.09.2008 determining the total income of Rs.1,66,090/-. Subsequently, it is detected that the assessee showed profit on develop & sale of land at Mahish Bathan for Rs.9,86,500/- but it was not taken into a/c in the computation of income. Omission to do so resulted in an underassessment of income of Rs.9,86,500/-. Therefore, the amount was required to be added back with the total income. I have therefore reason to believe that the amount is required to be added back with the total income. As such, I consider this a fit case invoking the provisions of section 147. Issue notice u/s. 148.” 5. From the above reasons it seems that the assessee did not disclose profit on development of sale of land at Mahish Bathan for a sum of Rs.9,86,500/-. The facts relating to that transactions are that the assessee had purchased land at Mahish Bathan jointly with her husband Shri Haridas Sarkar in the year 1996 for a sum of Rs.1,17,000/-. This property was handed over to one developer Shri Susanta Mondal vide agreement dated 23.04.2004, wherein Shri Mondal, the developer agreed to develop the property by retaining 62% of the area and balance will go to the assessee and her husband. On completion, during the year, the developer handed over two flats one to assessee and one to her husband and assessee sold these flats for a consideration of Rs.20,00,000/- and assessee’s share was Rs.10 lacs therein. The assessee kept this sum of Rs. 10 lacs in capital gain account scheme with Bank of Maharastra, Bidhannagar Branch and the relevant details were file before the AO during the course of original assessment proceedings and the relevant information filed before AO, which reads as under: “Land at Mahish Bathan Develop with developers on Agreement dated 19.04.04 38% shares got two flats & four car parking space but 2 (two) flats & four car parking space but 2 (two) flats & one car parking space sold on 31.01.06 50% shares of land received draft deposited with Bank of Maharashtra, Bidhannagar Branch for further purchase of land. Rs.10,00,000/-” 6. But the AO after reopening the assessment assessed this consideration of Rs.10 lacs as business income of the assessee amounting to Rs.9,86,500/- for the reason that the same was disclosed in the income and expenditure account of the assessee for the year ended 31.03.2006 amounting to Rs.9,86,500/- as profit on sale of this flat. Aggrieved, assessee preferred appeal before CIT(A), who also confirmed the action of AO. Aggrieved, now assessee is in second appeal before Tribunal. 7. I have heard rival submissions and gone through facts and circumstances of the case. I find from the above facts that the assessee jointly with her husband purchased a piece of

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land at Mahish Bathan on 10.10.1996 vide registered sale deed for an amount of Rs.58,500/- i.e. the total consideration of Rs.1.17 lacs, the price shown in the sale deed. After holding the land for eight years, the assessee along with her husband entered into a development agreement with the developer Shri Susanta Mondal vide dated 23.04.2004, wherein they agreed that they will retain 38% of the property and balance 62% will go to the developer Shri Susanta Mondal. The assessee was to be allotted two flats jointly with her husband. Accordingly, the assessee got two flats and the same was disposed off for a consideration of Rs. 20 lacs and assessee’s share was Rs. 10 lacs. The assessee during the course of original assessment proceedings filed complete documents including disclosing this sale of property and profit from sale of this property also at Rs.9,86,500/-. The AO originally framed the assessment and accepted the plea of the assessee that the assessee has invested the capital gain portion in the capital gain account scheme but subsequently, reopened the assessment by treating this property as adventure in nature of trade and the resultant capital gain is to be assessed as business income rather than long term capital gain. 8. We find that this is merely a change of opinion and nothing else and on merits also this is a capital asset and it cannot be treated as business profit treating the same as adventure in the nature of trade but this can be treated as LTCG or STCG, as the case may be, because this is a long term capital asset, thus the assessee has invested the sums in capital gain account scheme maintained with Bank of Maharastra. This fact is admitted by CIT(A) but he confirmed the addition. I am of the view that this is merely a change of opinion, which is not possible in term of law. Hon’ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd., (2010) 310 ITR 561 (SC), wherein newly substituted provision of section 147 of the Act with effect from 01.04.1989 is interpreted by observing, that section 147 of the Act, as substituted w.e.f. 01.04.1989 does not postulates conferment of power upon the AO to initiate reassessment proceeding upon his mere change of opinion. 9. Similarly, Hon’ble Supreme Court in the case of CIT Vs. Foramer France (2003) 264 ITR 566 (SC) affirmed the judgment of Hon’ble Allahabad High Court in the case of Foramer Vs. CIT (2001) 247 ITR 436 (All), wherein Hon’ble Allahabad High Court held as under: “Having heard learned counsel for the parties, we are of the view that these petitions deserve to be allowed.

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It may be mentioned that a new section substituted section 147 of the Income-tax Act by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. The relevant part of the new section 147 is as follows: “147. If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may,subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or re- compute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year.” This new section has made a radical departure from the original section 147 inasmuch as clauses (a) and (b) of the original section 147 have been deleted and a new proviso added to section 147. In Rakesh Aggarwal v. Asst. CIT [1997] 225 ITR 496, the Delhi High Court held that in view of the proviso to section 147 notice for reassess- ment under section 147/148 should only be issued in accordance with the new section 147, and where the original assessment had been made under section 143(3) then in view of the proviso to section 147, the notice under section 148 would be illegal if issued more than four years after the end of the relevant assessment year. The same view was taken by the Gujarat High Court in Shree Tharad Jain Yuvak Mandal v. ITO [2000] 242 ITR 612. In our opinion, we have to see the law prevailing on the date of issue of the notice under section 148, i.e., November 20, 1998. Admittedly, by that date, the new section 147 has come into force and, hence, in our opinion, it is the new section 147 which will apply to the facts of the present case. In the present case, there was admittedly no failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new section 147 squarely applies, and the impugned notices were barred by limitation mentioned in the proviso. Learned departmental counsel relied on section 153(3)(ii) of the Income- tax Act and submitted that there was no bar of limitation in view of the said provision. We do not agree. Section 153 relates to passing of an order of assessment and it does not relate to issuing of notice under section 147/ 148. Moreover, this is not a case where reassessment is sought to be made in consequence of or to give effect to any finding or direction contained in the order of the Tribunal in Boudier Christian’s case. As already stated above, Boudier Christian’s case related to the employees of the company, whereas the impugned notice has been issued to the company. Hence, it

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cannot be said that the proposed reassessment in consequence of the impugned notice would be in consequence of or to give effect to any find- ings of the Tribunal in Boudier Christian’s case. A direction or finding as contemplated by section 153(3)(ii) must be a finding necessary for the disposal of a particular case, that is to say, in respect of the particular assessee and in relevance to a particular assess- ment year. To be a necessary finding it must be directly involved in the disposal of the case. To be a direction as contemplated by section 153(3)(ii) it must be an express direction necessary for the disposal of the case before the authority or court vide Rajinder Nath v. CIT [1979] 120 ITR 14 (SC) ; Gupta Traders v. CIT [1982] 135 ITR 504 (All) ; CIT v. Tarajan Tea Co. (P.) Ltd. [1999] 236 ITR 477 (SC) and CIT v. Goel Bros. [1982] 135 ITR 511 (All), etc. The case of an expatriate employee was to be decided on the basis of the provisions of article XIV of the treaty, whereas corporate income was to be decided on the basis of either article III or article XVI of the treaty or section 44BB of the Act. Hence, the observations of the Tribu- nal in Boudier Christian’s case was not a direction necessary for the dis- posal of the appeal relating to the petitioner. The exigibility of income of the petitioner from manning and management contracts was never an issue directly or indirectly involved in the case of Boudier Christian. Moreover, the Tribunal in the appeal relating to the assessment of the petitioner’s own case, vide Deputy CIT v. ONGC [1999] 70 ITD 468 (Delhi) has considered the decision of the Tribunal in Boudier Christian’s case. It is settled law that an appeal is a continuation of the original proceedings and hence when the Tribunal in the appeal relating to the petitioner has considered the decision of the Tribunal in Boudier Christian’s case, the impugned notice under section 147/148 would obviously be on the basis of a mere change of opinion by the income-tax authorities, which would not be valid as held by the Supreme Court in Indian and Eastern News- paper Society v. CIT [1979] 119 ITR 996 ; Gemini Leather Stores v. ITO [1975] 100 ITR 1 (SC) and Jindal Photo Films Ltd. v. Deputy CIT [1998] 234 ITR 170 (Delhi), etc. In the decision of the Tribunal in the assessee’s own case, Deputy CIT v. ONGC [1999] 70 ITD 468 (Delhi) it has been held that the income from the contract between the parties was business income and not fee for techni- cal services. Although we are of the opinion that the law existing on the date of the impugned notice under section 147/148 has to be seen, yet even in the alternative even if we assume that the law prior to the insertion of the new section 147 will apply even then it will make no difference since even under the original section 147 notice for reassessment could not be given on the mere change of opinion as held in numerous cases of the Supreme Court, some of which have been mentioned above. Since the Tribunal in the appeal relating to the assessee-company had considered the Tribunal’s earlier decision in Boudier Christian’s case, it will obviously amount to mere change of opinion, and hence the notice under section 147/148 would be illegal.”

6 ITA No.797/Kol/2015 Smt. Santi Sarkar, AY 2006-07 10. In view of the above, I find that and following the decision cited supra, I am of the opinion that the reassessment proceedings taken by AO and confirmed by CIT(A) is of no merit and hence, the orders of lower authorities are dismissed. Appeal of assessee is allowed. 11. In the result, appeal of assessee is allowed. Order pronounced in the open court on 16.03.2016. Sd/- (Mahavir Singh) Judicial Member

Dated : 16th March , 2016

Jd. Sr. P.S Copy of the order forwarded to: 1. Appellant – Smt. Santi Sarkar,27/2, Beniatola Lane, Kolkata-700009.. 2. Respondent – ITO, Ward-37(2), Kolkata. 3. CIT(A) , Kolkata 4. CIT , Kolkata 5. DR, Kolkata Benches, Kolkata /True Copy, By order,

Asstt. Registrar.