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2024:BHC-OS:2536-DB signed by MEERA MEERA MAHESH MAHESH JADHAV 1/8 912-wp-3246-22.doc JADHAV Date:

2024.02.16

1 0:04:54 IN THE HIGH COURT OF JUDICATURE AT BOMBAY +0530 ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3246 OF 2022 Mira Bhavin Mehta ) 143A, Kalpatru Residency CHS Ltd. ) Kamani Marg, Sion (East) )

Mumbai 400 022 ) ...Petitioner Versus

1 Income Tax Officer Ward 6 (3) (1) ) Aayakar Bhavan, Maharshi Karve ) Road, Mumbai 400 020 ) 2 Principal Commissioner of Income ) Tax-6, Aayakar Bhavan, Maharshi )

Karve Road, Mumbai 400 020 ) ...Respondents ----

Mr. K. Gopal a/w Ms Neha Paranjpe and Mr. Akhilesh Deshmukh for Petitioner.

Mr. Suresh Kumar for Respondents.

----

CORAM : K. R. SHRIRAM &

Dr. NEELA GOKHALE, JJ.

DATED : 13^th FEBRUARY 2024 ORAL JUDGMENT (PER K. R. SHRIRAM J.) :

1 Rule. Rule made returnable forthwith and heard. As the pleadings are completed, this court, by consent of the parties has taken up the matter for final hearing.

2 Petitioner, an individual, filed return of income on 28^th August 2018 for AY-2018-19 declaring total income of Rs.26,26,220/-. Petitioner, thereafter, received a notice dated 28^th September 2019 issued under Section 143(2) of the Income Tax Act 1961 (the Act) stating that return of income has been selected for limited scrutiny with regard to investments in immovable property, capital gains / income on sale of property. Petitioner was called upon to submit evidence with regard to the two issues raised. Thereafter, petitioner received a notice dated 12^th December 2019 issued under Section 142(1) of the Act calling upon petitioner to provide documents and details with regard to capital asset that was sold during the assessment year. Petitioner vide its Chartered Accountant's letter dated 11^th December 2020, provided details of the property sold, consideration received, etc., the property being Flat No.802, 8^th floor of Boulevard-III, Ghatkopar (West), Mumbai 400086 (the said flat). Later, petitioner received one more notice dated 16^th February 2021 issued under Section 142(1) of the Act, seeking details with regard to same property. Once again, vide petitioner’s Chartered Accountant's letter dated 17^th February 2021, petitioner provided all details and documents.

3 An assessment order came to be passed on 28^th April 2021, in which, it is stated that the case was selected for limited scrutiny assessment on the issues relating to investments in immovable property, capital gains / income on sale of property and in view of material available on record, no addition on the issues is made. The assessment order also states that the assessment is passed accepting the income computed as per order under Section 143(1)

of the Act.

4 Almost a year later, petitioner received a communication dated 11^th March 2022 being an inquiry under Section 148A(a) of the Act seeking details of the sale of the residential property, which was the subject matter of the scrutiny assessment. Petitioner replied vide its Chartered Accountant's letter dated 15^th March 2022 and provided all details and documents called for. This was followed by a notice dated 22^nd March 2022 issued under Section 148A(b) of the Act, wherein paragraph 3 reads as under:

“3. On perusal of submission it is seen that you have purchased a residential property vide registered agreement dated 17.10.2017 and sold the said property vide registered agreement dated 27.10.2017 and thus the said immovable property is short term capital Asset and gain arising from the said sale of property is short terms capital Gain, however on perusal of computation of income it is seen that you have considered date of acquisition of property at 28.05.2010 and computed net long term capital loss of Rs.33,793/-. In view of the same, you are requested to explain as to why the capital gain on said sale of property should not be computed as under”

Sale consideration of flat (50% ownership) – Rs.1,05,00,000/-

Less :- Purchase consideration of flat (50% ownership) Rs.71,95,625/-

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