ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1.Heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned advocate Mr. Nikunt Raval with learned advocate Mrs. Kalpana K. Raval for the respondent.

2.Having regard to the controversy involved in this petition, with the consent of the learned advocates for the respective parties, the petition is taken up for final hearing.

3.Rule returnable forthwith. Learned advocate Mr. Nikunt Raval waives service of notice of rule for the respondent.

4.The petitioner has preferred this petition under Article 226 of the Constitution of India challenging the impugned notice dated

31.03.2021 issued under section 148 of the Income Tax Act, 1961 (For short “the Act”) proposing to reopen the assessment for the Assessment Year 2015-2016.

5.Brief facts of the case are that the petitioner is an individual. During the year under consideration, the petitioner sold an agricultural land at village Bhesan bearing Survey No.99/2, Block No.176, admeasuring 14363 square meters, T. P. Scheme No.9, Mud Khand No.116 for Rs.5,74,52,000/- on 04.10.2014 along with two other co-owners and share of the petitioner in above referred sale consideration was Rs.3,44,71,200/-. It is the case of the petitioner that the petitioner utilized such sale consideration for purchase of agricultural land and claimed exemption of Rs.1,94,62,745/- under section 54B of the Act. Resultantly, the petitioner earned Short Term Capital Gain of Rs.13,18,257/- on sale of the land in question.

5.1) The petitioner filed return of income for the for the Assessment Year 2015- 2016 on 31.08.2015 declaring total income at Rs.54,25,340/- which included Short Term Capital Gain of Rs.13,18,257/- on sale of land in question.

5.2) The case of the petitioner was selected for scrutiny assessment by issuance of notice dated 20.09.2016 under section

143(2) of the Act.

5.3) The Assessing Officer, thereafter, issued notice dated 31.01.2017 under section 142(1) of the Act, calling upon the petitioner to furnish various details.

5.4) The petitioner, vide letter dated

20.03.2017, furnished the details that were called for by the Assessing Officer.

5.5) The Assessing Officer, thereafter, issued notice dated 08.08.2017 under section 142(1) of the Act, calling upon the petitioner to produce necessary evidences to the effect that the property at Bhesan was being utilized for agricultural purposes in order to substantiate the claim under section

54B of the Act.

5.6) The petitioner, vide letter dated 22.08.2017, furnished copy of agreement for agricultural land purchased for claiming benefit under section 54B of the Act as well as copy of relevant extract of notice under section 135D of the Bombay Land Revenue Code,1879 for substantiating the claim that the land was an agricultural land.

5.7) The petitioner, vide letter dated 20.09.2017 gave detailed explanation in support of the fact that the land in question was used for agricultural purposes.

5.8) It is the case of the petitioner that the Assessing Officer, after threadbare examining the details furnished by petitioner from time to time, consciously chose not to disturb the claim of exemption under section 54B of the Act while framing assessment under section 143(3) of the Act vide order dated

14.11.2017.

5.9) The respondent, thereafter, issued the impugned notice dated 31.03.2021 under section 148 of the Act seeking to reopen the case of the petitioner for Assessment Year

2015-2016.

5.10) The petitioner filed the return of income in response to the impugned notice on 16.04.2021 and further requested the respondent to supply copy of reasons recorded for reopening the assessment.

5.11) The respondent supplied the copy of reasons for reopening the assessment vide letter dated 10.09.2021. The reasons recorded by the Assessing Officer for reopening the assessment under section 147 of the Act read as under:

“1. Brief details of the Assessee: The assessee ha