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2014 (8) TMI 276 - AT - Income TaxReopening of assessment Change of opinion - Income from sale of shares wrongly assessed under income from STCG instead of business income Held that - CIT(A) rightly held that the AO has reopened the assessment on the basis of change of opinion - CIT(A) also held that the gain arising on sale of shares is assessable as Short term Capital gain only - the view expressed by CIT(A) is upheld - assessee has furnished all the details relating to share transactions before the AO during the course of original assessment proceedings - AO has completed the assessment u/s 143(3) of the Act by considering those details - Later the AO has passed a rectification order u/s 154 of the Act also - on both the occasions, the AO was very much aware of the fact that the assessee has declared the gains arising on sale of shares under the head Capital gains, that too both the Short term Capital Gains and Long term capital gains - A careful perusal of the reasons recorded for re-opening also shows that the AO has entertained the reasons only from the facts already available on record - CIT(A) was justified in holding that the AO has re-opened the assessment only on the basis of change of opinion and the CIT(A) was justified in quashing the reopening of assessment Decided against Revenue.
Issues:
1. Validity of re-opening of assessment under section 148 of the Income Tax Act. 2. Classification of income from sale of shares as Short term Capital Gain or Business income. 3. Application of the principle of change of opinion in re-opening the assessment. Issue 1: Validity of re-opening of assessment under section 148 of the Income Tax Act: The appeal pertains to the re-opening of assessment for the assessment year 2006-07. The assessing officer re-opened the assessment based on the reasoning that income from the sale of shares was wrongly assessed as Short term Capital Gain instead of Business income. The assessee contended that the re-opening was unjustified as it was a mere change of opinion without any new information. The original assessment was completed under section 143(3) of the Act, and a rectification order was also passed under section 154. The CIT(A) held that the re-opening was indeed based on a change of opinion and quashed the re-opening. The Tribunal agreed with the CIT(A) and dismissed the revenue's appeal. Issue 2: Classification of income from sale of shares as Short term Capital Gain or Business income: The assessing officer re-opened the assessment to classify the income from the sale of shares as Business income instead of Short term Capital Gain. The AO based this on the frequency and consistency of share transactions throughout the year, indicating a trading pattern. The AO also noted the significant profits from share transactions. The CIT(A) held that the income should be assessed as Short term Capital Gain. The Tribunal found that the AO re-opened the assessment solely based on existing information, leading to a change of opinion. As the AO was aware of the share transactions during the original assessment and rectification, the classification of income as Short term Capital Gain was upheld. Issue 3: Application of the principle of change of opinion in re-opening the assessment: The assessing officer's decision to re-open the assessment was challenged on the grounds of change of opinion. The CIT(A) and the Tribunal concurred that the re-opening was indeed a change of opinion as the AO had all the necessary information during the original assessment and rectification. The Tribunal cited legal precedents to support the view that re-opening an assessment based on existing information amounts to a review of the earlier assessment order, which is impermissible under the law. Therefore, the Tribunal upheld the CIT(A)'s decision to quash the re-opening of assessment. In conclusion, the Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s decision to quash the re-opening of assessment based on the principle of change of opinion and upheld the classification of income from the sale of shares as Short term Capital Gain.
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