2015 (12) TMI 1028 - AT - Income Tax

Reopening of assessment - Long Term Capital Gains computation - Held that - The Assessing Officer has issued notice u/s 147 after having credible information on record during the course of survey regarding the quantum of Long Term Capital Gains. Recalling the facts, the order of the CIT(A) for the Asst. Year 2008-09 was not regarding the quantum of Long Term Capital Gains, but was regarding the Asst. Year in which the Long Term Capital Gains is to be brought to tax. Hence, it cannot be held as the review on the basis of change of opinion. The issue in the appeal for the Asst. Year 2008-09 and also for the Asst. Year 2006- 07 was regarding the year in which the Long Term Capital Gains was to be brought to tax. The issue in the appeal was never regarding the quantum of Long Term Capital Gains. Hence the submissions of the learned Authorized Representative in this regard do not support the case of the appellant that the Assessing Officer has no jurisdiction u/s 147 of the Income Tax Act, 1961. There is no change of opinion considering the facts of the case. Hence the decision relied on by the Authorized Representative are not relevant to the facts of the case. The submissions of the learned Authorized Representative regarding change of opinion are rejected and the 148 proceedings are upheld - Decided against assessee

Issues Involved:
1. Jurisdiction of the Assessing Officer under Section 147.
2. Validity of reopening the assessment under Section 147.
3. Applicability of the third proviso under Section 147.
4. Allegation of change of opinion by the Assessing Officer.

Detailed Analysis:

1. Jurisdiction of the Assessing Officer under Section 147:
The assessee challenged the jurisdiction of the Assessing Officer (AO) under Section 147, arguing that the AO exceeded his jurisdiction in reopening the assessment. The Commissioner of Income Tax (Appeals) and the Tribunal upheld the AO's jurisdiction, noting that the reopening was based on credible information obtained during a survey under Section 133A, which revealed a higher sale consideration for the property.

2. Validity of Reopening the Assessment under Section 147:
The reopening of the assessment was contested by the assessee on the grounds that it was based on a change of opinion. The Tribunal, after reviewing the submissions and the order of the Commissioner of Income Tax (Appeals), held that the reopening of the assessment was valid. The Tribunal noted that the reopening was not based on a change of opinion but on new information obtained during the survey, which justified the reassessment.

3. Applicability of the Third Proviso under Section 147:
The assessee argued that the third proviso under Section 147, which restricts the AO from reassessing income that has already been the subject matter of an appeal, should apply. The Commissioner of Income Tax (Appeals) and the Tribunal found that this proviso was not applicable in this case. The reassessment was based on new information regarding the quantum of Long Term Capital Gains (LTCG), not on the year of taxability, which was the subject matter of the previous appeal.

4. Allegation of Change of Opinion by the Assessing Officer:
The assessee claimed that the reassessment was a result of a change of opinion by the AO. The Tribunal, agreeing with the Commissioner of Income Tax (Appeals), found no merit in this argument. The reassessment was triggered by new information obtained during the survey, which indicated that the sale consideration should be higher than initially reported. This new information justified the reassessment, and hence, it was not a case of change of opinion.

Conclusion:
The Tribunal upheld the order of the Commissioner of Income Tax (Appeals), validating the reopening of the assessment under Section 147. The Tribunal found that the AO had jurisdiction, the reopening was based on new information, and there was no change of opinion. Consequently, the appeal of the assessee was dismissed. The order was pronounced in the open court on 27.11.2015.

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