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TMI Blog2015 (6) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... f Jet Airways (I) Ltd. (2010 (4) TMI 431 - HIGH COURT OF BOMBAY) we hold that the reassessment in the case of the assesse is not valid and the same is set aside. - Decided in favour of assesse. - I T A. No.4347/Mum/2013 - - - Dated:- 23-3-2015 - Shri Vijay Pal Rao And Shri N.K. Billaiya JJ. For the Appellant : Shri Dipak J. Shukla For the Respondent : Shri N. Padmanaban ORDER Per Vijay Pal Rao, J.M. : This appeal by the assessee is directed against the order dated 15-03-2012 of ld. CIT(A)- 27, Mumbai pertaining to A.Y. 2006-07. 2. The assessee has raised the following grounds of appeal:- 1. On the facts and circumstances of the case and in law the learned C.I.T. (Appeals) erred in holding that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed to tax as capital gain @ 10% instead of income from speculative transaction which should have been taxed at 30%. The assessee filed return of income in response to notice u/s 148 of the Act. During the course of assessment proceeding, the assessee pointed out that there was a typing mistake in the details of sale and purchase of shares filed by the assessee and particularly in the date of sale of shares of Pfizer Ltd. which was shown to have been sold on 10-2-2005 instead of 10-02-2006. Thus there was a mistake in typing the year of sale and accordingly the A.O. has reopened the assessment on the basis of wrong date of sale of shares of Pfizer Ltd. The assessee filed purchase and sale contracts of the shares of Pfizer Ltd. to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT vs. Jet Airways (I) Ltd. [2011] 331 ITR 236 (Bom.) 5. On the other hand, the ld. D.R. relied upon the orders of authorities below and submitted that as per Explanation 3 to section 147, the A.O. may assess or reassess the income in respect of any issue which has escaped assessment and such issue comes to his notice subsequently in the course of proceeding u/s 147 of the Act. 6. In the rejoinder, the ld. A.R. has pointed out that in the course of original assessment, the A.O. made a proper enquiry on the issue of capital gain or business income. He has referred to the assessment order u/s 143(3) of the Act and submitted that the A.O. has discussed the issue in the original assessment order passed u/s 143(3) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons recorded that the A.O. has reopened the assessment by noting the fact that there is a speculation transaction amounting to ₹ 95,647/- which should have taxed at 30% but was taxed at 10% being short term capital gain in the original assessment passed u/s 143(3) of the Act. However, during the reassessment proceeding, the A.O. noted that the actual date of sale of the transaction of shares of Pfizer Ltd. is 10-02-2006 and not 10-02-2005. We note that in the details of the sales and purchase of the shares at Sl No. 77, the assessee has furnished the detail as under:- Dt. Of purchase Amount Dt. Of sale Amount Gains 77 Pfizer 05/12/2005 457,765.05 10/02/2005 553,228.40 95,463.35 Thus, it is clear that there is an apparent mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has conducted detailed enquiry on the issue of short term capital gain should not be treated as business income. The issue on which the assessment was reopened, the A.O. accepted the contention of the assessee and hold that the income which he has initially formed a reason to believe had escaped assessment has as a matter of fact not escaped assessment, therefore, it is not open to him independently to assess some other income as held by the Hon ble jurisdictional High Court in the case of Jet Airways (I) Ltd. (supra) in para No. 22 23 as under:- 22. Explanation 3 lifts the embargo, which was inserted by judicial interpretation, on the making of an assessment or reassessment on grounds other than those on the basis of which a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh notice under section 148 would be necessary, the legality of which would be tested in the event of a challenge by the assessee. 23. We have approached the issue of interpretation that has arisen for decision in these appeals, both as a.matter of first principle, based on the language used in section 147(1) and on the basis of the precedent on the subject. We agree with the submission which has been urged on behalf of the assessee that section 147(1) as it stands postulates that upon the formation of a reason to believe that income chargeable to tax has escaped assessment for any assessment year, the Assessing Officer may assess or reassess such income and also any other income chargeable to tax which comes to his notice subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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