S.kamarasu v. The Income Tax Officer, Non Corporate Ward-15(2), Room

IN THE HIGH COURT OF JUDICATURE OF MADRAS PRONOUNCED ON : 30.09.2020 CORAM: THE HONOURABLE MR. JUSTICE M.S. RAMESH W.P.No.2818 of 2017and WMP.No.2754 of 2017 S.Kamarasu ... PetitionerVs. The Income Tax Officer,Non Corporate Ward-15(2),Room No.205, II Floor,Wanaparthy Block,Aayakar Bhawan, 121, M.G. Road,Nungambakkam,Chennai-600 034.... Respondent PRAYER: Writ Petition filed under Article 226 of theConstitution of India, praying to issue a Writ of Certiorari,calling for the records in assessment order under Section 143(3) r/w Section 147 of the Income Tax Act, 1961 dated30.12.2016 on the file of the respondent relating to theAssessment Year 2009-10 and quash the same. For Petitioner : Mr.M.P.Senthil KumarFor Respondent :Mr.A.P.Srinivas, Sr.S.C O R D E R With the consent of both parties, the present WritPetition is heard through Video Conferencing on 16.09.2020. 2. The petitioner, along with his wife, purchased aproperty in Chennai on 09.05.2008 for a sale consideration ofRs.1,67,54,730/-, which includes registration charges and hadfiled his return of income on 30.09.2009 for the AssessmentYear 2009-10, which was processed under Section 143(1) of theIncome Tax Act. The guideline value of the property, as perthe records of the concerned Sub-Registrar, was atRs.1,94,95,000/-. During scrutiny, the Assessing Officerraised the issue of quoting the property value at a lesseramount in the returns, to which the petitioner had given hisexplanation with regard to the sources and reasons forpurchasing the property at a lesser price. In this background,https://hcservices.ecourts.gov.in/hcservices/the assessment under Section 143(3) was completed. 3. On 30.03.2016, the respondent issued a notice underSection 148 to reopen the assessment for the Assessment Year2009-10. In response, the petitioner requested to treat thereturns already filed on 30.09.2009 as returns, in response tothe notice under Section 140. The request came to be rejectedand the assessment under Section 143(3) was completed throughthe impugned assessment order dated 30.12.2016. 4. The learned counsel for the petitioner submitted thatthe notice under Section 148 on 30.03.2016 was beyond theperiod of four years and therefore, is barred by limitation inview of the proviso to Section 147 of the Act. 5. Mr.A.P.Srinivas, learned Senior Standing Counsel forthe department, by placing reliance on the statements made inthe counter affidavit submitted that though the petitioner hadgiven the sale value of the property in Annexure 1-A of thesale deed at Rs.1,94,95,000/-, the petitioner had adopted alesser purchase value in the balance sheet and therefore, thedepartment cannot be found fault with while passing theimpugned assessment order. 6. At the outset, it deserves to be mentioned that theWrit Petition requires to be allowed on the ground that thenotice under Section 148 is barred by limitation. It is seenthat the notice under Section 148 was issued on 30.03.2016 forthe Assessment Year 2009-10. Under the proviso to Section 147of the Income Tax Act, the department was entitled to issuethe notice on or before 31.03.2014, on which date, the fouryear period prescribed under this Section, expires.Apparently, the notice under Section 148 dated 30.03.2016 isbeyond the period of six years and as such, the notice itselfis bad in law, since barred by limitation. As such, theconsequential impugned assessment order dated 30.12.2016,cannot be sustained. 6. At the outset, it deserves to be mentioned that theWrit Petition requires to be allowed on the ground that thenotice under Section 148 is barred by limitation. It is seenthat the notice under Section 148 was issued on 30.03.2016 forthe Assessment Year 2009-10. Under the proviso to Section 147of the Income Tax Act, the department was entitled to issuethe notice on or before 31.03.2014, on which date, the fouryear period prescribed under this Section, expires.Apparently, the notice under Section 148 dated 30.03.2016 isbeyond the period of six years and as such, the notice itselfis bad in law, since barred by limitation. As such, theconsequential impugned assessment order dated 30.12.2016,cannot be sustained. 7. Insofar as the objections raised by the learned SeniorStanding counsel for the department is concerned, thesubmission that the petitioner had disclosed the full value inAnnexure 1-A of the sale deed and that he had shown a lesseramount in the returns, cannot be sustained for two reasons.Firstly, such a reasoning was not assigned while thepetitioner's objections were considered at the time of passingthe assessment order. This ground of objection has beenbrought in the first time by way of a counter affidavit, whichis impermissible. Secondly, Annexure 1-A is a statement madealong with sale deed presented for registration and the valueof Rs.1,94,95,000/- is only a guideline, whereas the recitalsin the sale deed evidences that the property was purchased atRs.1,50,00,000/-. Therefore the guideline value shown in theAnnexure 1-A of the sale deed, cannot be construed to be anactual sale value and therefore the consequential decisionhttps://hcservices.ecourts.gov.in/hcservices/that the petitioner had under quoted the sale amount in the returns, cannot be accepted. Nevertheless, it is made clearthat this Court is not expressing its views that the saleprice shown in the Sale Deed would be conclusive evidence fordetermination. 8. For all the foregoing reasons, the impugned assessmentorder dated 30.12.2016 cannot be sustained since it is barredby limitation and accordingly, the same stands quashed.Consequently, the Writ Petition stands allowed. ConnectedMiscellaneous Petition is closed. No costs. To Sd/- Assistant Registrar(CS )//True Copy// Sub Assistant Registrar The Income Tax Officer,Non Corporate Ward-15(2),Room No.205, II Floor,Wanaparthy Block,Aayakar Bhawan, 121, M.G. Road,Nungambakkam,Chennai-600 034. +1 cc to Mr.AP.Srinivas, Advocate,sr.32120.Nrjk(co)krd 3/11W.P.No.2818 of 2017and WMP.No.2754 of 2017