JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr. S.N.Soparkar with learned advocate Mr. B.S.Soparkar for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for learned advocate Mrs. Kalpana K. Raval for the respondent. 2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule for the respondents. 3. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 16.03.2020 passed by the Assistant Commissioner of Income Tax, Ahmedabad, under section 148 of the Income Tax Act, 1961 (for short ’the Act’)for A.Y.2013-14. 5. Brief facts of the case are that the petitioner filed return of income for A.Y. 2013-14 on 28.09.2013 declaring total income of ‘Nil’. 5.1 Case of the petitioner was reopened under section 148 of the Act and the reasons were supplied on 25.05.2016. The petitioner filed objections on 22.06.2016. The assessment was framed on 03.10.2016 under section 143(3) read with section 147 accepting the return income. 5.2 Thereafter, once again, notice under section 133(6) of the Act was issued on 19.02.2020 seeking information regarding transfer of property (plots of land) by the petitioner at a value lower than the market value. 5.3 The petitioner received the impugned notice dated 16.03.2020 under section 148 of the Act. The assessee filed reply to the notice under section 133(6) on 15.07.2020 explaining in detail that the property was transferred in the year 1995 and therefore, the comparison of price of transfer of the year 1995 with market value of year 2012 is erroneous as further it was explained that the property was never owned by the petitioner but by the society and therefore, the tax consequences, if any, cannot be upon the petitioner. 5.4 The reasons recorded by the respondent Assessing Officer was incorporated in the notice under section 143(2) dated 22.10.2020 and thereafter, copy of the reasons recorded was provided on 05.01.2021. The petitioner filed the objections on 23.10.2020 which was disposed of by the respondent-Assessing Officer on 18.02.2021. The petitioner therefore being aggrieved, has preferred this petition. 6. 5.4 The reasons recorded by the respondent Assessing Officer was incorporated in the notice under section 143(2) dated 22.10.2020 and thereafter, copy of the reasons recorded was provided on 05.01.2021. The petitioner filed the objections on 23.10.2020 which was disposed of by the respondent-Assessing Officer on 18.02.2021. The petitioner therefore being aggrieved, has preferred this petition. 6. During the pendency of this petition, by order dated 25.06.2021, learned advocate for the respondent was directed to pass an order disposing of the objections. 7. Pursuant to the aforesaid order, respondent-Assessing Officer has passed a speaking order disposing of the objection on 05.07.2024 which is placed on record on 09.07.2024. 8. Learned Senior Advocate Mr. Soparkar submitted that the petitioner is a developer and has booked the plots of the society under the development agreement and shown the same as a stock-in-trade in the books of accounts. It was pointed out that such booking was done for the year 1995. 8.1 It was further submitted that the petitioner in response to the notice under section 133(6) as well as objections to the impugned notice for reopening has stated in detail that there cannot be any comparison of the market value with the value in the year 2012 when the sale deeds were executed and the amount of booking collected in the year 1995. 8.2 It was further pointed out that the petitioner-Company has shown the property in question i.e. plots of land as stock-in-trade in the name of the scheme-”Radhe Arce” as per the development agreement entered into between the Shantinagar (Shela) Cooperative Housing Society and the petitioner. It was also pointed out that the land of the project was purchased by the society and by virtue of the development agreement, the petitioner collected the amount from members on behalf of the society for work to be performed. 8.3 It was submitted that section 43CA of the Act was not on Statute for the year under consideration and as the petitioner was not the owner of the land in question, section 50C of the Act would not be applicable. It was therefore, submitted that attempt on the part of the respondent-Assessing Officer in the reasons recorded for alleged escapement of the income even if the same is taken on its face value, no addition can be made under any provisions of the Act. 9. It was therefore, submitted that attempt on the part of the respondent-Assessing Officer in the reasons recorded for alleged escapement of the income even if the same is taken on its face value, no addition can be made under any provisions of the Act. 9. On the other hand, learned Senior Standing Counsel advocate Mr.Sanghani submitted that the petitioner has not placed on record a copy of the development agreement between the petitioner and the society and only reference is made in the reply to the notice under section 133(6) as well as the objections raised by the petitioner. It was submitted that admittedly there was a difference of the market value i.e. Jantri rate and the value of registration and therefore, there is an escapement of the income of Rs. 4,06,73,100/- and the Assessing Officer was justified in recording the reasons and issuing notice for reopening. 9.1 It was further submitted that the petitioner has failed to give details in relation to the amounts disclosed in the books of account vis-a-vis the market value of the property and therefore, there is failure on the part of the petitioner to disclose fully and truly all material facts relevant for the assessment. It was pointed out that the petitioner has admittedly shown the less sale consideration in the return filed as compared to the stamp duty valuation and therefore, provisions of section 50C are applicable in the facts of the case because the petitioner, though may be a developer, has discharged the function of an owner. 10. Having heard learned advocates for the respective parties, it appears that the respondent-Assessing Officer has misinterpreted the provision of section 50C of the Act. It would therefore be germane to refer to the reasons recorded which reads as under: “Copy of Reasons Recorded:- The assessee company has filed the return of income on 30.04.2016 declaring the total income at Rs. Nil. The re-open scrutiny was finalized u/s. 143(3) r.w.s. 147 of the Income Tax Act 1961 on 03.10.2016 at assessed income at Rs. 79,93,170/-. With reference to the information received regarding the high value transaction, the assessee company has entered into sale of the property(ies) as per stamp valuation. Nil. The re-open scrutiny was finalized u/s. 143(3) r.w.s. 147 of the Income Tax Act 1961 on 03.10.2016 at assessed income at Rs. 79,93,170/-. With reference to the information received regarding the high value transaction, the assessee company has entered into sale of the property(ies) as per stamp valuation. The details for the FY 2012-13 of the assessee company are as under; Registration No. Value of Registration Market Value Date Stamp Duty 2705 22,72,900/- 25,43,200/- 01-May-12 1,50,100/- 3899 25,50,000/- 28,53,260/- 02-Jul-12 1,68,600/- 3468 22,74,500/- 25,35,579/- 01-Jun-12 1,50,000/- 3466 18,90,500/- 20,47,500/- 01-Jun-12 1,21,000/- 3297 17,00,000/- 19,02,173/- 22-May-12 1,12,500/- 3295 16,47,300/- 18,43,205/- 22-May-12 1,09,000/- 3292 16,25,200/- 18,20,000/- 22-May-12 1,07,500/- 2765 17,00,000/- 19,02,173/- 07-May-12 1,12,500/- 7992 41,95,600/- 46,94,531/- 12-Dec-12 2,77,100/- 7993 25,50,000/- 28,53,237/- 12-Dec-12 1,68,600/- 6383 23,32,000/- 32,90,288/- 28-Sep-12 1,94,200/- 3470 25,50,000/- 28,53,260/- 01-Jun-12 1,68,600/- 6383 23,32,000/- 39,63,265/- 28-Sep-12 1,94,200/- 5461 46,26,000/- 55,71,429/- 22-Aug-12 2,73,000/- 3,42,46,000/- 4,06,73,100/- 23,06,900/- The letter u/s. 133(6) of the Income Tax Act 1961 was issued to the assessee company after taking the prior approval from the Pr. CIT-3, Ahmedabad, vide DIN no. ITBA/COM/F/2019-20/1025447058(1) dated 19/02/2020 for clarification of the transaction value entered in the books of accounts of the assessee company. The assessee company has not responded. The assessee company has failed to give the details that whether the assessee company has booked these amounts in its books of accounts. Under the circumstances, I have reasons to believe that total receipts are not correctly reflected in the books of accounts of the assessee company and are not declared by the assessee company in its return of income. As discussed above, I have reason to believe that there are escape income of Rs. 64,27,100/- and this is the fit case for the re-opening u/s. 147 of the Income Tax Act,1961.” 11. From the above reasons, it appears that the respondent-Assessing Officer has considered the registration of sale of the plot of land as if the petitioner is the the owner of the such property and thereby has assumed the jurisdiction to reopen the assessment on the basis of the difference between the market value of the property and the registration value. 12. 12. It appears that the Assessing Officer while disposing of the objections, has not considered the objections raised by the petitioner to the effect that there is no escapement of income as the difference between the value for stamp duty and the value of registration shown in the document cannot be taxed in any of the provisions of the Act. 13. Moreover, there is no information available with the Assessing Officer which has a direct nexus with the income which is alleged to have been escaped. 14. The petitioner has also disclosed fully and truly all material facts and therefore, as per proviso to section 147 of the Act, the Assessing Officer would not have any jurisdiction as the impugned notice is issued beyond the period of four years from the end of the relevant assessment year. 15. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. Impugned notice dated 16.03.2020 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.