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TMI Blog2014 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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. - I.T.A. No. 7781/Mum/2012 - - - Dated:- 25-7-2014 - Shri B. R. Baskaran (AM) And Vivek Varma, (JM),JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned in the original return of income. Hence, the assessee moved a rectification petition u/s 154 of the Act on 28-01-2009 before the AO to consider the revised return of income. Consequent thereto, the AO passed the rectification order on 15.04.2009 assessing the total income at ₹ 2,83,62,142/-. 4. Subsequently, the Assessing Officer reopened the assessment by issuing notice dated 25-03-2011 u/s 148 of the Act on the reasoning that the income from sale of shares has been wrongly assessed under the head Income from Short term Capital gain , instead of assessing the same under the head Income from Business , since the assessee has indulged in trading of shares and mutual fund units. Though the assessee objected to the re-openi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther contended that the decision rendered by Ld CIT(A) is contrary to the ratio laid down by Delhi High Court in the case of CIT Vs. Usha International Ltd. 7. On the contrary, the Ld A.R submitted that the assessee had furnished all the details relating to the share transactions to the assessing officer during the course of original assessment proceedings. The AO, thereafter, passed the original assessment order u/s 143(3) of the Act accepting the income declared under the Short term Capital Gains. Accordingly, he contended that the AO has re-opened the assessment only on the basis of change of opinion. He also placed reliance on the decision rendered by the Hon ble jurisdictional Bombay High Court in the case of Asian Paints Ltd Vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew is seen to be ₹ 10,22,38,569/-; (c) Similarly, the total quantum of sale of shares works out to ₹ 12,03,29,482/- (d) It is seen that shares have been traded in a frequent and consistent manner through out the year under review. A few instances on the basis of test check is a under : Month No. of share transactions Profit on shares trade(Rs.) May 36 8,01,549 June 43 27,55,396 August 50 29,28,752 September 22 14,83,159 November ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained in details in above paras. The appellant inter-alia earned profit on sale of investments in mutual fund and shares which were disclosed and offered to tax as short term capital gain. During the original assessment proceedings, the appellant had filed all the details and information pertaining to sales/purchase and other transactions pertaining to mutual fund/ shares giving rise to short term capital Gains. In the original assessment order, the AO did not disturb appellant s claim of S.T.C. Gains. Thereafter, the AO also initiated proceedings u/s.154 of the Act in which also the said details of the appellant were considered by the AO. Thereafter, the AO had reopened the assessment by issue of notice u/s.148 of the Act. For re-opening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet such power would not justify a review of the assessment order already passed. In the case under consideration, the AO has reopened the assessment on the basis of material already available on record. This amounts to review of earlier assessment order and change of opinion which is not permissible under the law. In the case of Kelvinator of India ,320 ITR 561, the Supreme Court held that even within 4 years, the reopening cannot be made on the basis of change of opinion. recently, the full Bench of Delhi High Court in the case of CIT Vs. Usha International Ltd reported in (2012) 77 DTR (Del)(Full Bench) 396 order dated 21-09-2012 the Full Bench has considered as to what amounts to change of opinion holding that In such a case, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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