2018 (2) TMI 607 - SCH - Income Tax

Validity of reopening - Validity of notice u/s 148 when scrutiny assessment was made but same was annulled - doctrine of merger - Held that - SLP dismissed. HC order confirmed 2017 (8) TMI 241 - GUJARAT HIGH COURT HC has held that the reopening is based on the belief of the Assessing Officer that the sale proceeds should be taxed as the business income and not as capital gain. This subject matter was not a part of the order of the Commissioner (Appeals). The Commissioner (Appeals) having entertained only part of the assessee s appeal the principle of merger as flowing from the proviso to section 147 of the Act would not apply. Assessing Officer proceeded to pass the order of assessment discarding the assessee s objection of non service of notice and in which he held that income generated from the sale of land was a business income. When such order was set aside on the ground of invalidity having been passed without service of notice the order does not survive in eye of law. There is thus no original assessment. There is no opinion of the Assessing Officer on record. There is no question of the assessee s return having been scrutinised. There is therefore no change of opinion.- Decided against assessee.