KALYAN ALA BAROT Vs. M.H. RATHOD

JUDGEMENT

(1.) This petition seeks the following substantive reliefs:

(2.) The Petitioner is an agriculturist. The Petitioner jointly purchased agricultural land at Mundra with one Shri Kanji Pethabhai, which was purchased by the Gujarat Sheep Development Corporation for a sum of Rs. 5 lakhs. The Petitioner filed an application for issue of a certificate under Section 230A of the Income Tax Act, 1961 (the Act) on 17-6-1983. The assessing officer issued a notice under Section 139(2) on 18-6-1984 for the assessment year 1984-85, however, the Petitioner did not respond to the same. Hence, the assessing officer finalized the assessment under Section 144 of the Act on 30-3-1987 on a total income of Rs. 1,62,000, inter alia, taxing capital gain on sale of the said property. Against the said order, the Petitioner approached the Commissioner of Income-tax, Rajkot, under Section 264 of the Act. Vide order dated 22-3-1992, the Commissioner directed to reframe the assessment after giving the Petitioner an opportunity of being heard. Notices under Section 142(1) came to be issued on 6-10-1992 and 22-2-1993. The Petitioner filed a return on 12-3-1993 disclosing "nil" income. The assessment was completed on 30-3-1993 assessing long-term capital gain on sale of the subject land, at Rs. 1,62,000. The Petitioner carried the matter in appeal before Commissioner (Appeals). Before the Commissioner (Appeals), the main contention raised on behalf of the Petitioner was that where a sale deed is properly registered under the provisions of the Registration Act, the transaction takes effect from the date of the original sale deed. The transfer, therefore, stood completed on 8-3-1983 and hence, capital gain on the said transaction would not be taxable in the assessment year 1984-85. The Commissioner (Appeals) accepted the plea of the Petitioner and, vide order dated 16-2-1996, allowed the appeal holding that the long-term capital gain arising on the sale was liable to be taxed in the assessment year 1983-84 and not 1984-85 and accordingly deleted the addition. Liberty was, however, reserved for the assessing officer to bring the long-term capital gain to tax in the assessment year 1983-84 as per law.

(3.) In the light of the order made by the Commissioner (Appeals), the Respondent-assessing officer issued notice dated 7-8-1996 under Section 148 of the Act for reopening the assessment for the assessment year 1983-84. It is the case of the Petitioner that since the notice was barred by limitation, he did not file any return. The assessing officer issued notice dated 22-11-1996 under Section 143(2) of the Act for hearing the case on 29-11-1996. The Petitioner prayed for time contending that the notice was illegal. The assessing officer issued another letter dated 10-12-1996 fixing the hearing on 27-12-1996. At this stage, the Petitioner filed the present petition seeking the reliefs noted hereinabove.