F.M. Ibrahim Kalifulla, J.@mdashThe Revenue has come forward with this appeal raising the following substantial question of law:
Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the re-opening of assessment u/s 147 was not proper and denial of exemption u/s 54 was bad for the assessment year 1995-96?
2. As it is seen from the order of the assessing Authority passed u/s 143(3) read with 147 of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), the assessee''s return for the assessment year 1995-96 was originally processed u/s 143(1)(a) of the Act on 23.9.1996. Subsequently, it was taken up for scrutiny u/s 143(3) of the Act. At that point of time, the sale of house property by the assessee for a consideration of Rs. 18,00,000/- was very much known to the assessing Authority. The assessee admitted the capital gain of Rs. 6,07,035/-.
3. The assessment was concluded u/s 143(3) of the Act and was completed on 27.2.1997, which determined the capital gain of Rs. 1,00,000/- as against "nil" capital gain determined earlier u/s 143(1)(a) of the Act. The deduction claimed by the assessee u/s 54 of the Act to the extent of Rs. 12,50,000/- was allowed at that point of time. It is only thereafter the present reassessment proceedings came to be initiated by issuing notice u/s 148 of the Act. The alleged escapement of capital gain taxed on the sum of Rs. 1,37,788/-, which was earlier allowed u/s 54 in the proceedings dated 27.2.1997.
4. The Assessing Authority, having determined the tax liability by an order dated 27.2.1997, the matter went before the Commissioner of Income Tax (Appeals), who took the view that it was not really a case of escaped assessment, but was one of change of opinion by the assessing Authority. In the order of the Commissioner of Income Tax (Appeals), in paragraph 4.4, the Commissioner of Income Tax (Appeals) noted that the claim of the assessee for deduction u/s 54(1) of the Act to the extent of Rs. 12,50,000/- was considered by the assessing Authority while passing orders u/s 143(3) of the Act. Under the circumstances, the present attempt of the assessing Authority in reopening the case u/s 147 of the Act cannot be permitted. The Tribunal also confirmed the view of the Commissioner of Income Tax (Appeals), taking note of all the above factors.
5. In this context, in the decision of the Honourable Supreme Court reported in
6. Having regard to the above legal position, we do not find any scope to entertain this appeal inasmuch as there is no question of law much less substantial question of law for consideration. The appeal fails and the same is dismissed.
