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The Bombay High Court in [2023] 458 ITR 486 (Bom) declined to admit the writ stating that the matter involved mere dispute on question of facts and that prima facie, there is some material on the basis of which a notice for reopening of escaped assessment has been issued.

Now in this case the assessee omitted to include the transaction of sale of property of which the SDV u/s 50C exceeded 50 lacs. Now the assessee’s claim were that the net capital gains resulting actually fall well below 50 lacs so that the statutory period of reopening crossed 6 years.

Basically therefore it challenged the jurisdiction by stating indexed cost and capital gains indicators in his reply which were ignored by the AO stating that the same cannot be verified at the 148A stage of inquiry.

This assumption is hugely large and against the intent of section 148A which distinctively uses the words “decide, on the basis of material available on record including reply of the assessee”. The Court however it appears discounted the words “ reply of the assessee” and pronounced verdict on mere reference to some material in possession of the AO without appreciating that the same AO and his senior has a duty to write whether it is a fit case to issue notice after considering reply of the assessee and not solo on the basis of some material without carrying any verifications.

There is a certain amount of jurisdiction failure entitling the Courts to intervene in such case instance.

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