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TMI Blog2015 (10) TMI 1882X X X X Extracts X X X X X X X X Extracts X X X X ..... live nexus between reasons recorded and formation of belief. In the present case the Assessing Officer formed the belief regarding escapement of income on the ground that assessee had claimed loss by trading in its own shares which was factually incorrect. Therefore, in view of the decision of the Hon’ble Supreme Court in the case of Kelvinator of India Limited reported in [2010 (1) TMI 11 - SUPREME COURT OF INDIA ], the reassessment proceedings were bad in law, which rightly cancelled by the ld. CIT(Appeals). We accordingly confirm the order of ld. CIT(Appeals) on these observations. - Decided in favour of assessee. - I.T.A. No. 100/KOL/ 2012 - - - Dated:- 12-8-2015 - Shri S.V. Mehrotra and Shri Mahavir Singh, JJ. For The Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 24. (3) From the details of computation of long term capital gain, it is seen that the assessee has traded in its own shares and in the process has booked a long term capital loss of ₹ 3,25,52,531/-. From the assessment records of AY 2003-04, it is also seen that the companies which were holding long term capital loss of ₹ 3,25,52,531/-. From the assessment records of AY 2003-04, it is also seen that the companies which were holding these shares had already amalgamated with the assessee company prior to the financial year relevant to AY 2004-05. Hence, the transactions by the assessee company in its own shares are not permissibl e and the resultant long term capital loss is liable to be disallowed. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) The re-opening of assessment could not be done on the basis of mere change of opinion within four years from the end of the relevant assessment year in view of the decision of the Hon ble Supreme Court in the case of Kelvinator of India Limited reported in 320 ITR 561(SC) as well as the decision of the Hon ble Calcutta High Court in the case of Amrit Feeds Limited vs.- ACIT, Circle-2, Kolkata reported in 239 CTR 82. He observed that subsequent to completion of the assessment, no fresh material or evidence came in Assessing Officer s possession on the basis of which he formed reasons to believe that income chargeable to tax had escaped assessment. 4. Ld. D.R. for the Revenue submitted that the Assessing Officer never formed his opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that the Assessing Officer has recorded reasons in respect of three items, as noted earlier, but it was only with reference to the third reason that the Assessing Officer made disallowance of carry forward of capital loss. 5.1. Ld. counsel further referred to pages 30 to 32 of the paper book, wherein the assessment order passed under section 143(3) is contained and pointed out that the Assessing Officer has, inter alia, observed as under:- 3. During the assessment proceedings, the assessee has submitted that a sum of ₹ 38,41,393/- being long term capital loss in respect of sale of 3,50,000 equity shares of Duncans Industries Limited was inadvertently not considered at the time of filing of return of income. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he further loss claimed by the assessee, which was in respect of equity shares of Duncans Industries Limited, was inadvertently not considered at the time of filing of return of income, then it cannot be said that the Assessing Officer had not applied his mind to the facts of the case on record. 6.1. Before the ld. CIT(Appeals), the assessee had specifically pointed out that at the time of original assessment the Assessing Officer was in possession of assessee s audited financial accounts for years ended on 31.03.2003 and 31.03.2004. In these accounts, the assessee had made disclosures about amalgamation of three companies in terms of the order of the Hon ble Calcutta High Court passed in May, 2003 by which three Companies were amalgama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nexus between reasons recorded and formation of belief. In the present case the Assessing Officer formed the belief regarding escapement of income on the ground that assessee had claimed loss by trading in its own shares which was factually incorrect. Therefore, in view of the decision of the Hon ble Supreme Court in the case of Kelvinator of India Limited reported in 320 ITR 561, the reassessment proceedings were bad in law, which rightly cancelled by the ld. CIT(Appeals). We accordingly confirm the order of ld. CIT(Appeals) on these observations. 7. As we have al ready confi rmed the order of ld. CIT(Appeal s) cancelling the reassessment proceedings, Ground No. 2 has become infructuous and accordingly dismissed. 8. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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