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2013 (6) TMI 523 - AT - Income TaxReopening of assessment - show cause as to why the short-term capital gain should not be treated as a business income - assessee informed that earlier an assessment u/s.143 according to which the short-term capital gain was assessed as such - Held that - Records of the assessee have demonstrated that a return of income along with the computation of total income was filed by the assessee wherein disclosed the profit under the head short-term capital gain and paid the tax accordingly. Also noted that the assessee has furnished the P&L account drawn as on 31.3.2005 and therein also there was clear mention of the gain earned on share transaction. When the assessment proceedings were going on, then a questionnaire has been issued dated 11.5.2007, as well as a notice u/s.143(2)/142(1) & as per query No.13 of the questionnaire, the assessee was required to furnish and justify the short-term capital gain along with complete documentary evidences which the assessee furnished before the AO at the time of assessment proceedings. On due verification of all those details, the AO had made an observation in the said original assessment order passed u/s.143(3) dated 24.12.2007, which says that books of accounts, bills, vouchers, etc. were produced during the course of hearing which were verified and test-checked. An another observation made by the AO that the assessee was investing his own funds in the shares markets and earning out of it. Due to these reasons, the facts of the case have amply demonstrated that on the basis of the information available on record the AO had taken a conscious decision to assess the profit as short-term capital gain in the hands of the assessee. Therefore where an AO undertakes scrutiny assessment & on those very facts and details already on record the reopening can be held as change of opinion. See Gujarat Power Corporation Ltd. 2012 (9) TMI 69 - Gujarat High Court - In favour of assessee.
Issues Involved:
1. Reopening of Assessment under Section 147/148 of the Income Tax Act, 1961. 2. Determination of whether the income was short-term capital gain or business income. Detailed Analysis: Issue 1: Reopening of Assessment under Section 147/148 of the Income Tax Act, 1961 Facts and Arguments: - The assessee challenged the reopening of the assessment and the assessment made under Section 143(3) read with Section 147 of the IT Act, dated 29/09/2010, which required the assessee to show cause why the short-term capital gain of Rs. 18,26,277/- should not be treated as business income. - Initially, an assessment under Section 143 was finalized on 24/12/2007, assessing the short-term capital gain as such. A notice under Section 148 was issued on 4/8/2009, and the assessee was served with the reasons recorded. - The main contention of the assessee was that the reopening was done by a change of opinion by the AO, which is not permissible in law. The original assessment order dated 24/12/2007 discussed the issue in compliance with a notice under Section 143(2), and the AO had found that the assessee had made the investment out of owned funds and earned gain out of it. Legal Precedents and Citations: - The assessee relied on the decisions in Rutu Investments (P.) Ltd. vs. Dy.CIT [2012] 21 taxmann.com 320 (Delhi) and Gujarat Power Corpn.Ltd. vs. Asst. CIT [2012] 26 taxmann.com 51 (Guj.), arguing that reopening based on the same facts and information already on record constitutes a change of opinion. - The Revenue argued that the original assessment order was silent on whether the gain was capital gain or business income, and the AO had rightly reopened the assessment based on the volume and nature of share transactions. The Revenue cited Asst. CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500 (SC), stating that reopening within four years is permissible if the AO has reason to believe that income has escaped assessment. Tribunal's Findings: - The Tribunal noted that the assessee had disclosed the profit under the head "short-term capital gain" and paid tax accordingly. During the original assessment proceedings, the AO had issued a questionnaire and notices under Sections 143(2) and 142(1), asking the assessee to justify the short-term capital gain with complete documentary evidence. - The Tribunal found that the AO had made a conscious decision to assess the profit as short-term capital gain based on the information available on record. The reopening of the assessment on the same facts and information constituted a change of opinion, which is not permissible under the provisions of Section 147 of the IT Act. - The Tribunal followed the decision of the Hon'ble Jurisdictional High Court in Gujarat Power Corporation Ltd. 26 taxmann.com 51 (Guj.), which held that reopening on the same facts and circumstances amounts to a mere change of opinion and is not permissible. Conclusion: - The Tribunal concluded that the reopening of the assessment was bad in law as it was based on a mere change of opinion by the AO. The impugned assessment was quashed. Issue 2: Determination of whether the income was short-term capital gain or business income Tribunal's Decision: - The Tribunal did not express an opinion on the merits of whether the income was a business income or short-term capital gain, as the appeal was allowed on the legal ground of reopening of assessment itself. Final Judgment: - The appeal was allowed on the legal ground of reopening of assessment under Section 147/148 of the IT Act, and the impugned assessment was quashed. The Tribunal did not decide on the merits of whether the income was business income or short-term capital gain.
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