Madras High Court
Janaki Mohan vs The Income Tax Officer on 31 August, 2021
W.P. No. 30247 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :31.08.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No. 30247 of 2016
Janaki Mohan ... Petitioner
..vs..
The Income Tax Officer,
Non Corporation Ward-15(2)
Room No. 205, 2nd Floor, New Block,
No.121, Mahatma Gandhi Road,
Nungambakkam,
Chennai-600 034. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of certiorari calling for the records in
ITO/NCW15(2)/AAGPJ7764C/16-17 dated 12.08.2016 on the file of the
respondent relating to assessment year 2009-10.
For Petitioner : Mr.G.Baskar
For Respondent : Mr.A.P.Srinivas
Senior Standing Counsel
ORDER
The order of disposal rejecting the objections filed by the petitioner
on the reopening proceedings initiated under Sections 147 / 148 of the
Income Tax Act, 1961 is under challenge in the present Writ Petition.
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2. The petitioner states that she is a regular assessee in terms of the
provisions of the Income Tax Act, 1961 and filed returns of income
regularly duly disclosing all incomes within the time frame stipulated under
statute. The petitioner states that she was a shareholder in a Company by the
name and style of Grand Nirvana Holiday Resorts Private Limited. She filed
return of income for the assessment year 2009-10. The petitioner duly
informed about the capital gains of a sum of Rs.10,79,97,872/- and claimed
an exemption of an amount of Rs.6,12,83,975/- being invested in a
residential house. The Assessing Officer during the course of original
assessment sought for certain clarifications on the claim of the petitioner /
assessee under Section 54F of the Act. The petitioner also furnished details
and informations regarding the queries raised by the Assessing Officer.
Elaborate adjudications are made with reference to the capital gains as well
as the claim regarding exemption and finally, the assessment order was
passed on 22.12.2011 under Section 143(3) of the Income Tax Act. In view
of the fact that the Assessing Officer has granted exemption in respect of
one property out of three properties purchased by the petitioner, the
petitioner preferred an appeal before the Commissioner of Income Tax
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(Appeals) who in turn allowed the appeal in entirety in order dated
11.07.2012. Against the order passed by the Commissioner of Income Tax
(Appeals), the Assistant Commissioner of Income Tax filed further appeal
before the Income Tax Appellate Tribunal in I.T.A.No.1837/Mds/2012. The
Income Tax Appellate Tribunal elaborately considered the grounds raised
by the Department as well as the defence placed by the assessee and
confirmed the order of assessment passed by the original Assessing
Authority and reversed the order passed by the Commissioner of Income
Tax (Appeals). Against the said order of Income Tax Appellate Tribunal,
the petitioner filed T.C.A. No. 71 of 2016 before this Court and an interim
order was granted by this Court on 09.03.2016. The Tax Case Appeal is
pending. However, it is brought to the notice of this Court that during the
pendency of the Tax Case Appeal, the petitioner has opted Samadhanam
scheme and settled the issues and therefore, the assessment order dated
22.12.2011 became final.
3. The learned counsel for the petitioner reiterated that all the
documents pertaining to the purchase of the properties made by the
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petitioner / assessee were produced before the Assessing Officer at the first
instance more so along with the return of income. Further clarifications
sought for by the Assessing Officer were also furnished. The Assessing
Officer elaborately discussed the transactions and the purchase of the
properties made by the petitioner and made a finding in the assessment
order itself. Based on the finding, the Assessing Officer granted exemption
under Section 54F of the Act only in respect of one property and the
assessment order now became final. While so, the respondent issued a
notice under Section 148 of the Act for reopening of assessment beyond the
period of four years but within six years on the ground that the petitioner
has not disclosed the material facts fully and truly as contemplated under
proviso clause to Section 147 of the Act. The petitioner requested to furnish
the reasons which was communicated to the writ petitioner. The learned
counsel for the petitioner drew the attention of this Court with reference to
the reasons furnished in proceedings dated 06.04.2016 wherein the very
same documents pertaining to the purchase of three properties are cited as
reasons for reopening and therefore, the reason furnished for reopening is
nothing but change of opinion. The petitioner filed her objections in detail
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stating that the reason itself is not in consonance with the disclosures made
by the petitioner before the original Assessing Officer and requested for
dropping of the reopening proceedings. Without considering any of the
objections merely reproducing the reasons furnished for reopening, the
impugned order of disposal has been issued. Thus, the petitioner is
constrained to move the present Writ Petition.
4. The learned Senior Standing counsel appearing on behalf of the
respondent disputed the said contentions raised on behalf of the petitioner
by stating that as per Explanation 1 to Section 147, mere production of
documents, book of accounts etc., may not be a ground to seek exoneration
from the reopening proceedings. Even if such book of accounts and
documents are produced, the authority is empowered to reopen the
assessment if they could arrive at a conclusion that income chargeable to
tax, escaped assessment due to the failure on the part of the assessee or due
to the non-disclosure of material facts truly and fully under the proviso
clause to Section 147 of the Act. In the present case, there was
non- disclosure during the relevant point of time before the Assessing
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Officer regarding certain details which provided cause for the respondent to
reopen the assessment. Thus, the petitioner is bound to participate in the
reassessment proceedings.
5. The learned Senior Standing counsel is of an opinion that the
petitioner has erroneously sought for exemption under section 54F of the
Income Tax Act and the said informations and materials were not
considered by the original Assessing Authority at the time of passing the
final assessment order under Section 143(3) of the Act. If at all, the
exemption under Section 54F of the Act is required to be withdrawn for
violation of the condition under sub-section (2) of Section 54F of the Act,
the assessee has to pay an additional tax and the additional tax is also
calculated as Rs.46,20,782/-.
6. In view of the fact that these aspects were not considered by the
Assessing Officer, the respondent has reopened the assessment.
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7. In support of the said contentions, the learned Senior Standing
counsel relied on the Judgment of the Hon'ble Supreme Court of India in the
case of Indi-Aden Salt Manufacturing and Trading Company Private
Limited v. Commissioner of Income Tax reported in (1986) 25 Taxman
356 (SC) wherein, the Apex Court made the following observations:
"7. ..... In respect of the material failure, the omission
to disclose may be deliberate or inadvertent. That was
immaterial. But if there is omission to disclose material
facts, then, subject to the other conditions, jurisdiction to
reopen is attracted. It is sufficient to refer to the decision of
this Court in Calcutta Discount Company Ltd's case (supra)
where it had been held that if there are some primary facts
from which reasonable belief could be formed that there
was some non-disclosure or failure to disclose fully and
truly all material facts, the ITO has jurisdiction to reopen
the assessment. This position was again reiterated by this
Court in Malegaon Electricity Co. (P) Ltd. v. CIT
8. Furthermore, bearing these principles in mind in
this particular case whether there has been such
non-disclosure of primary facts which has caused
escapement of income in the assessment was basically a
question of fact."
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8. In the case of Girilal and Company v. Income Tax Officer,
Mumbai reported in (2016) 75 Taxman 172 (SC), the Hon'ble Supreme
Court made an observations as follows:
"4. It is clear from the above that this
information was supplied as there was some query
about the value of the land. Obviously, while going to
this document the Assessing officer would examine the
value of the land. However, the reason for issuing
notice under Section 148 of the Income Tax Act was
that the appellant had not correctly disclosed the
actual assets of the plot and hence, it was not entitled
for deduction under section 80(1B) (10) of the Act.
The Income Tax Authority itself has mentioned in the
notice under section 148 of the Act that such
information was available only in the valuation
report. Giving the information in this manner shall be
of no help to the appellant as the Assessing Officer
was not expected to go through the said information
available in the valuation report for the purpose of
ascertaining the actual construction of the plot."
9. Relying on the above Judgments, the learned Senior Standing
counsel reiterated that the petitioner has not fully and truly disclosed the
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materials which provided cause for the Assessing Officer to reopen the
assessment and thus, the Writ Petition has to be rejected.
10. Considering the arguments as advanced by the respective learned
counsel for the petitioner and the learned Senior Standing counsel for the
respondent, it is not in dispute that mere filing of documents, book of
accounts etc., would not be sufficient to grant exoneration from reopening
proceedings from the assessee under Explanation 1 to Section 147 of the
Act. Explanation 2 to Section 147 enumerates various circumstances
wherein the cases are to be treated as deemed cases for reopening of
assessment. However, in the case where reopening of assessment is made
beyond the period of four years but within six years it is mandatory that the
conditions stipulated under proviso clause to Section 147 of the Act is to be
complied with.
11. In the present case, the respondent raised a ground that the
petitioner / assessee had not produced all relevant materials fully and truly
which provided cause for reopening of assessment. In this regard, this Court
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has to examine the materials produced as well as the reasons furnished for
reopening of assessment.
12. The return of income for the assessment year 2009-10 filed by the
assessee reveals that deduction under Section 54F was sought for. Long
term capital gain was informed and deductions were also sought for under
the provisions of the Income Tax Act. It was not in dispute with reference to
the capital gain claimed as well as the informations provided seeking
exemption under Section 54F of the Act.
13. A reading of the assessment order would clearly reveal that the
working for arriving at the deduction under Section 54F was considered by
the Assessing Officer in detail in Para Nos.6 and 7 of the assessment order.
Based on the informations in Para No.18 of the assessment order, the
Assessing Officer categorically made a finding which reads as under:
"18. In view of the above discussions the
contentions of the assessee that the entire land is available
for benefits of Sec. 54F is not correct. The only portion of
land which can be said as complying with the provision of
Sec 54F is which is comprised in Survey Nos.98/9, 98/10,
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98/11, 98/2-3 wherein which the residential house is
situated as claimed by the assessee. This land can be
considered as indivisible with the residential house
(because of the peculiar geographical terrain of the entire
land). This land only can also said as appurtenant to the
residential house. Even this land has water bodies present
but it would be practically impossible for the seller (Y.J.
Alex) to segregate the water bodies and land and sell it to
two different buyers. The natural positioning of water
bodies of land within these survey numbers is such that the
segregation is difficult. Therefore, this chunk of land
along with residential house comprising in the Survey
No.s. 98/9, 98/10, 98/11, 98/2-3 would only qualify for the
benefits of Sec.54F."
14. Not satisfied with the assessment order passed under Section
143(3) of the Act, the petitioner / assessee filed an appeal before the
Commissioner of Income Tax (Appeals) who in turn considered the grounds
raised by the petitioner / assessee and allowed the appeal in entirety. The
Income Tax Department preferred further appeal before the Income Tax
Appellate Tribunal and the Income Tax Appellate Tribunal adjudicated the
issues with reference to the exemption claim made by the assesse and
confirmed the assessment order passed by the original Assessing Officer. It
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is pertinent to note that Income Tax Appellate Tribunal independently
appointed the Inspector of Income Tax to conduct an inspection and submit
a report and the said report was categorically considered by the Income Tax
Appellate Tribunal and it is relevant to extract the portion of the findings in
this regard from and out of the order passed by the Income Tax Appellate
Tribunal, which reads as under:
“14. The assessee relying on the memorandum
explaining the provisions of section 54F as reported in 184
ITR (Statue) submits that provision is intended to benefit an
assessee that invests in acquisition of residential house.
According to the assessee, this parameter is satisfied in this
case. Therefore, interpretation given by the Revenue that
assessee purchased several pieces of land by way of
separate sale deeds and therefore not eligible for deduction
under section 54F of the Act on the entire land is hyper
technical and contrary to the intention of the provision. No
doubt provision is intended to benefit the assessee that
invests in acquisition of residential house. However, in this
case the intention of the assessee appears to be not to
purchase residential house but to develop a resort. This is
clearly evident from the enquiry report submitted by the
Inspector of Income Tax on 27.05.2013 which read as
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under:-
"As directed, I have conducted a site inspection on
21.05.2013 at the landed property purchased by Smt. Janaki
Mohan, Plot No.490, 4th South Cross Street, Kapaleeswara
Nagar, Neelankarai, Chennai (PAN : AAGPJ7764C) from
Yogyaveettil family at Muhamma on 04.04.2009 and the
report thereupon is submitted as under:-
The property in Survey Nos. 98/2-1, 2-1A, 2-2, 2-3,
98/9, 10, 11, 99/5-1, 5-2, 5-3 and 99-11 admeasuring
555.612 cents as per records of Sub-Registrar Office,
Puthanambalam lies about 750 meters from Muhamma Boat
Jetty towards north. The east side of the land is Vembanad
lake and west side is Pallavathuckal-CMS Road which is
parallel to the Muhamma - Thannermukkon Road. This
property is lying as a single property fenced with compound
wall even though it is in several survey numbers.
At the time of my visit, Mr.Amesh, M.K.Project
Engineer recently appointed to supervise the land
development work was present and also some labourers.
Mr.Amesh informed that ground leveling work was started
about 10 days back only and about 800 loads of red earth
were unloaded which was 'being leveled with JCB. He told
me that the owner of the property Smt.Janaki Mohan intends
to construct a resort there and for which Chennai based
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company namely M/s.Arun Expello had been engaged for
the construction work.
I could observe two old house properties in the said
land. One is used by Mr.Amesh as office the area of the
house is about 1000 Sq.ft. The other one having about 300
Sq.ft area is almost in a dilapidated condition.
Mr.Amesh informed that there were three houses about 15
to 20 years old in the land all of which were in dilapidated
condition. One of unused building was demolished recently
for carrying out ground development leveling work. About
3½ acre land is being under leveling work. Most of the area
of the land is marshy with bushes, plants, ponds unyielding
coconut trees. The nearby inhabitants informed that the
property had been kept idle by the purchaser after it was
purchased till one month back.
The property have large commercial or business
importance in the area because of emergence of
eco-backwater tourism in Alappuzha. Muhamma is lying in
western side of the Vembanad lake in Allapuzha District.
Many resorts are functioning successfully for years in this
area. It is evident that the purchaser spent huge amount for
buying this land with an intention to make a huge return
from either running a resort or from resale of the land.
Earlier before the advent of tourism the cost was only
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Rs.20,000/- for a cent of land. But as this area become a
major tourist attraction in the world, the land price in this
area has gone up substantially.
My findings in brief in the light of questionnaire
envisaged in the letter of Hon.ITAT Chennai are as under:-
1. The very intention behind deduction u/s.54F is fully
defeated as the assessee neither constructed any building in
the land nor existing buildings were useful for residential
purpose. Moreover, the intension of the assessee in
purchasing the property is to start a resort thereon which is
a commercial / business activity. The assessee has been
keeping the land idle from the date of purchase till last
month.
2. With regard to the investment in property after purchase.
a) three side of the property is fenced with temporary
compound wall ( metal sheet)
b) two medium type gate fixed.
c) Three metre wide approach road from the opening of the
property about 150 mtrs is paved with graved red earth.
d) Ground leveling work in about 3.5 acre land which is
being carried out.
3. The purchaser never used this property for residential or
for business / commercial purpose.
4. After the approval by the Alappuzha Chief town planner,
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W.P. No. 30247 of 2016
the Grama Panchayat, Muhamma has given permission for
construction of villas in the resort on 07.01.2011. This has
been amended on 23.01.2013 based on applicants renewal
application. Letter dated 25.05.2013 of the Secretary,
Muhamma Grama Panchayat enclosing the above
permission is attached herewith.
5. The property is still in the possession of Smt.Janaki
Mohan as per the records maintained in the SRO,
Puthanambalan as on date. Letter received from the SRO,
Puchanambalan stating the same is enclosed.”
15. The Income Tax Appellate Tribunal passed a final order with the
finding that the Assessing Officer is perfectly justified in restricting the
deductions only to the portion of the land purchased from Mr.Y.J Alex in
Survey Nos. 98/9, 98/10, 98/11 and 98/2-3. Thus, upheld the order of the
Assessing Officer and reversed that of the Commissioner of Income Tax
(Appeals).
16. The Assessee preferred Tax Case Appeal before the High Court of
Madras in T.C.A. No. 71 of 2016 and during the pendency of the Tax Case
Appeal, the assessee approached the authorities under the Samadhanam
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W.P. No. 30247 of 2016
scheme and the disputes were settled and the assessment order originally
passed became final.
17. This being the fact not disputed between the parties, let us
consider the reasons furnished for reopening of assessment in proceedings
dated 06.04.2016. The reasons furnished are as under:
"All the three houses were not in a human habitual
condition as seen from the photos. As per sub section (2) of
section 54F, the assessee should not acquire another asset
other than the new asset within two years. Here, you had
acquired two more houses on the same date. The exemption
u/s 54F is required to be withdrawn for violation of
condition under sub section(2) of section 54F. This was not
considered while completing the assessment u/s 143(3) by
the Assessing Officer and consequently by CIT (A) in his
order dated 11.07.2012. If this is considered, there would be
an additional tax demand of Rs.46,20,782 (excluding
interest u/s 234B)."
18. The assessee filed her objections which was disposed of by
merely stating that "in the instant case, as the tax effect that escaped income
is more than Rs.0.1 Lakh Rupees and the notice under Section 148 is issued
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on 29.03.2016 which is within time limitation is 06 years, the reopening
proceedings is in order in letter and spirit as per the relevant provision of
the Income Tax Act and valid in law"
.....
In the instant case the fact in contention here is the eligibility of claim
u/s 54F of the IT Act. Even in the face of the claim of the assessee that there
was no failure on her part to disclose fully and truly all material facts
regarding the claim u/s. 54F, the specific facts related to the acquiring of
total three houses on the same date out of the sale consideration is found
being missed scrutiny and hence escaped assessment. As
purchasing/acquiring more than one residential house on the same date out
of the sale consideration is against the principle and violation of the
conditions prescribed under sub section (2) of Sec.54F of the IT ACt, the
reassessment to scrutinize this crucial criteria whether to allow exemption
or withdraw the claim of 54F is justified and permissible by the law.
Further for the benefit of the assessee, it is worth to discuss the relevant
section 147 of the IT Act which speaks about the Income Escape
Assessment is having it's sub section (c) under explanation 2 where it
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empowers the assessing officer to consider a few cases to be deemed cases
where income chargeable to tax has escaped assessment.
19. The objections in detail filed by the petitioner regarding filing of
all the sale documents as well as the adjudications made by the Assessing
Officer elaborately were not considered by the respondent while disposing
of the objections. Contrarily, the respondent has reiterated the reasonings
given for reopening of assessment and passed an order by merely stating
that it is not the case of change of opinion. Thus, the reopening assessment
is in consonance with Sections 147 / 148 of the Act.
20. The facts established would reveal that the assessee had
admittedly furnished all the documents pertaining to the three properties and
the Assessing Officer has originally taken note of all such purchasers with
reference to the sale documents produced before him and made a categorical
finding that the assessee is entitled to claim exemption under Section 54F of
the Act only in respect of one property. The findings categorically made in
the original assessment order are self speaking that the assessee had
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produced all those documents and the Assessing Officer also had considered
all those documents.
21. The reasons furnished for reopening of assessment in proceedings
dated 06.04.2016 reveals that as per sub-section (2) of Section 54F, the
assessee should not acquire another assest other than the new assest within
two years. Here, the petitioner had acquired two more houses on the same
date. The exemption under Section 54F is required to be withdrawn for
violation of condition under sub-section (2) of Section 54F. Thus, it is
apparently clear that for the purpose of withdrawal of the exemption granted
under Section 54F, the assessment is reopened. Such a reopening cannot be
construed as based on new tangible material. If at all any lapse committed
during the original assessment proceedings or erroneous consideration
based on the opinion formed by the Assessing Officer during the relevant
point of time, the other possible opinion if at all raised for reopening of
assessment is to be construed as change of opinion and cannot be
considered as new materials for the purpose of reopening of assessment.
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22. However in the event of tracing out new tangible material or
informations which were not at all adjudicated during the original
assessment may be a good ground for reopening of assessment. As
Explanation 1 to Section 147 enumerates that mere book of documents is
insufficient to grant exemption from reopening proceedings. However, in
the present case, admittedly the assessee had submitted all the documents
pertaining to the purchase of the three properties and all those documents
were placed before the Assessing Officer and the Assessing Officer
considered all those three documents and formed an opinion that, the
petitioner / assessee is eligible to grant exemption under Section 54F of the
Income Tax Act only in respect of one property.
23. While so, now the reopening is made based on the reasoning that
the exemption under Section 54F is required to be withdrawn for violation
of condition under sub-section (2) of Section 54F. The Assessing Officer
during the relevant point of time, when this issue was considered was very
much aware of the fact regarding the implication of sub-section (2) of
Section 54F and by considering all those aspects, he granted exemption for
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only one property alone. This being the factum, the Assessing Officer
clearly formed an opinion for the purpose of grant of exemption under
Section 54F while passing the original assessment order and now the
reasons furnished for reopening of assessment would reveal that they are
taking a different opinion on the same set of facts. Thus, the said reasons
furnished for reopening the proceedings dated 06.04.2016 amounts to
change of opinion beyond any pale of doubt.
24. As far as the Judgment relied on by the respondent in the case of
Indi-Aden Salt Manufacturing and Trading Company Private Limited
cited supra is concerned, the Hon'ble Supreme Court in unequivocable
terms held that in respect of the material failure, the omission to disclose
may be deliberate on or inadvertent. That was immaterial. But if there is
omission to disclose material facts, then, subject to the other conditions,
jurisdiction to reopen is attracted. However, in the present case, absolutely,
there was no omission on the part of the assessee and all the documents
pertaining to the purchase of the three properties were furnished by the
assessee and the Assessing Officer also verified the documents and made a
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finding in the assessment order. Thus, the findings made by the Apex Court
of India in the said Judgment is of no avail to the respondent as the
petitioner / assessee had submitted all the material facts before the
Assessing Officer.
25. In respect of the other Judgment in the case of Girilal and
Company is concerned, the Hon'ble Supreme Court in clear terms held that
the assessee in the case before the Hon'ble Supreme Court had not correctly
disclosed the actual assets of the plot and therefore, the assessee was not
entitled for deduction. However, even perusal of the reasoning furnished in
the present case, there is no such allegation against the petitioner / assessee.
In the present case, the sale document pertaining to all the three properties
were placed before the Assessing Officer by the assets. Even the return of
income filed by the assessee would reveal that the details regarding the
capital gains are clearly mentions that it is not disputed by the Assessing
Officer and its correctness is also not questioned by the authorities. This
being the factum established, this Court of an opinion that the Writ Petition
on hand is a case of change of opinion wherein an interference is called for.
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Admittedly, the reopening proceedings are initiated beyond the period of
four years and thus, the conditions stipulated in proviso clause to Section
147 is to be complied with. The respondent has not established that the
petitioner had not furnished all material facts fully and truly for the
assessment. Further, the materials produced for the assessment for claiming
exemption are not disputed by the respondent.
26. In view of the fact that non-disclosure on the part of the assessee
has not been established in this case, and thus the case of the petitioner
deserves merit consideration. Accordingly, the impugned order passed by
the respondent in proceedings No.ITO/NCW15(2)/AAGPJ7764C/16-17
dated 12.08.2016 is quashed and the Writ Petition stands allowed. However,
there shall be no order as to costs.
31.08.2021
Index:Yes
Speaking order
vji
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To
The Income Tax Officer,
Non Corporation Ward-15(2)
Room No. 205, 2nd Floor, New Block,
No.121, Mahatma Gandhi Road,
Nungambakkam,
Chennai-600 034.
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W.P. No. 30247 of 2016
S.M.SUBRAMANIAM J.
vji
W.P. No. 30247 of 2016
31.08.2021
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W.P. No. 30247 of 2016
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