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TMI Blog2014 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.2009. The assessment proceeding was reopened u/s. 147 after it has been found by the AO that the assessee had sold a property no.21/35, Freeganj, Hariparwat, Agra for Rs.6 lac against the stamp valuation of the property at, Rs.25,89,000/-. The AO found that in the original assessment order, the long term capital loss or sale of this property was worked out at Rs.42,668/- taking into consideration the 'actual sale value of the property amounting to RS.6 lac and the AO has not applied the provision of section 50C of the Act while passing the origina1 assessment order. The assessment proceedings has been opened by the AO after considering the fact that while computing the capital gain sale value of the property should have been consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse property and the cost of investment in the property has been taken only at Rs.30,000/-, for which the indexed cost of acquisition has been computed at Rs.1,38,900/-. After deducting the Indexed cost of acquisition computed at Rs.1,38,900/- from the stamp valuation of the property taken at Rs.25,89,000/-, the' AO has determined the long term capital gain at Rs.24,50,100/- which has been added in the income of the assessee assessed in the original assessment order u/s.143(3) dated 19.12.2005 at Rs. 51,475/- and thus, the tota1 assessed income has been determined in the assessment order dated 03.12.2009 passed u/s 147/143(3) at Rs.25,01 ,570/- which is under appeal. 3. The assessee challenged the reopening of assessment and addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. Since the AO did not have any tangible material in its possession except the sale deed, which has already been produced before the AO at the stage of original assessment proceedings, therefore, reopening of assessment on mere change of opinion was held to be nonpermissible in view of the decisions of Hon'ble Delhi High Court in the case of Kelvinator India Ltd., 256 ITR 1 (Del) and Usha International Ltd., 210 Taxman 188. The reassessment proceedings were accordingly quashed. 4. The ld. DR relied upon the order of the AO. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the ld. CIT(A) and referred to Paper book, in which computation of income, original assessment order and copy of reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT vs. Foraner France, 264 ITR 566 held reassessment - not on basis of mere change of opinion - law same before and after amendment by direct tax laws. Hon'ble Supreme Court in the case of Indian Oil Corporation, 159 ITR 956 held that no case u/s 148 is made out when the facts were known all along with to the revenue while making the original assessment. Hon'ble Supreme Court in the case of Associated Stone Industry Ltd., 224 ITR 560 held that the assessee shall have to disclose only the primary facts. Considering the above legal propositions decided in the above cases, it is clear that AO is not justified in reopening the assessment on mere change of opinion. It is admitted fact that there is no material available with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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