The court established that the Assessing Officer's attempt to reopen the assessment on a new ground for denying the claim for exemption under section 54B of the Act was impermissible as it amounted to a mere change of opinion.

AKIL KURESHI, J.

Petitioner has challenged notice dated 21.8.2013 issued under section 148 of the Income Tax Act, 1961 (‘the Act’ for short). Under such notice, the Assessing Officer desired to reopen the assessment of the petitioner for the assessment year 2009-10 which was previously framed after scrutiny. The notice was thus issued within the period of four years from the end of relevant assessment year. The Assessing Officer supplied the reasons recorded by him for issuing such notice to the petitioner which read as under:

“The assessee Shri Deepakbhai R. Patel is assessed to tax in the status of Individual. The return of income for A.Y.2009-2010 was furnished on 18.09.2009 declaring taxable income of Rs.1,46,590/-. The assessment was finalised u/s.143(3) of I.T.Act, 1961 vide order dated 18.10.2011.

The taxable income was determined at Rs.1,99,350/-.

2. It is seen from the records that the assessee was co-owner of land situated at Village: Chadiel, Tal. Daskroi, Dist. Ahmedabad bearing survey No.83 Block No.130. The land was purchased by the assessee and his co-owner Shri Dhirubhai Thakarshibhai on 28.05.1998 vide deed registration No.1556/1998 for Rs.33,385/-. The land was agricultural land as on the date of transfer i.e. 28.05.1998.

3. Thereafter the assessee started procedure to convert this agricultural land into non agricultural land and paid premium amount of Rs.16,02,480/-into Govt. account on 14.10.2008 as per order of District Collector Ahmedabad dated 30.09.2008. The said agricultural land was converted into non agricultural land vide State Govt.’s order dated 10.02.2009 after following statutory / administrative procedure/formalities.

4. The said N.A.land was sold by the assessee and his co-owner for Rs.36,66,180/-vide sale deed registered at Sr.No.1159/2009 on 17.02.2009. It is further seen from the records that the capital gain was worked out at Rs.9,84,302/-by the assessee for A.Y. 2009-2010 and claimed deduction u/s.54B of I.T.Act 1961 on the ground that said long term capital gain was invested in purchase of another agricultural land.

5. The scrutiny of details on records reveals that on the date of transfer, the land sold was not agricultural land, as discussed in foregoing paras. As such conditions laid down u/s. 54B of I.T.Act, 1961 are not satisfied and the assessee was not entitled to deduction u/s. 54B of I.T.Act, 1961.

6. The claim for deduction to the extent of Rs.9,84,302/-was erroneously allowed at the time of framing the assessment u/s. 143(3) of I.T.Act, 1961. I have therefore reason to believe that income chargeable to tax to the extent of Rs.9,84,302/-has escaped assessment within meaning of provisions of section 147 of I.T. Act, 1961.This is a fit case for issue of notice u/s.148 of I.T.Act,1961.”

The petitioner raised objections to such notice for reopening under communication dated 22.1.2014. Such objections were rejected by the Assessing Officer by order dated 7.2.2014. The petitioner has, therefore, filed the present petition.

Counsel for the petitioner drew our attention to the documents on record and pointed out that in the return filed by the petitioner on 18.9.2009, major claim of the petitioner was for exemption under section 54B of the Act. During the course of the original assessment, such claim was scrutinized thoroughly by the Assessing Officer. Only upon being satisfied about the validity of the claim, he framed assessment making no change. It is this assessment which the Assessing Officer desires to reopen on the basis that the petitioner sold the land which was converted into non-agricultural land and that therefore exemption under section 54B of the Act was not available. He submitted that such ground even otherwise lacked validity. The petitioner held agricultural land and used it for agricultural purpose right till the end it was sold. In order to sell the lan