9911796707
TMI Blog2014 (6) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer and information on this issue was available on the very 1st page of the computation given by the assessee in the revised return of income. In fact, this was the only issue which was presented in the revised return. Therefore there was no reason to even suspect that such an issue could not be discovered by the assessing officer during the assessment proceedings. Indeed, the assessment order dated 14.12.2007 provides a discussion of this very issue and the assessing officer clearly goes on to say in para-1 as well as in para-4 of that order that long-term capital gain has to be assessed on the sale of land. It is very clear from above that after a detailed scrutiny and investigation the assessing officer had formed an opinion on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure of all primary facts at the stage of original assessment proceedings and subsequent reopening of the assessment was on mere change of opinion. The AR relied on the judgements of Hon ble Supreme Court in the case of (i) Calcutta Discount Co. Ltd. vs. ITO 41 ITR 191 (SC), (2) ITO vs. Lakhmani Mewal Das (103 ITR 437) and (3) CIT vs. Bhanji Lavji (79 ITR 582). 4. The learned CIT(A) held that the period of four years from the end of the assessment year as envisaged for reopening u/s. 147 of the Act expired on 31.3.2010. Notice u/s. 148 was issued on 4.3.2011 after a period of four years had elapsed. He further observed that it is very clear from above that after a detailed scrutiny and investigation the assessing officer had formed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not valid though as per explanation 1 to section 147 production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. 7. The learned counsel for the assessee reiterated the submissions as made before the CIT(A). 8. The learned DR supported the order of the Assessing Officer. 9. We find that in this case notice u/s. 148 was issued on 4.3.2011 i.e., after a period of 4 years had elapsed. Beyond four years, the legal provisions are rigid and permit reopening of assessment only if there is a failure on the part of the assessee to disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding an iota of evidence to show any default on the part of the assessee, the assessing officer is not permitted as per law to reopen the assessment and change his opinion to assess the profit on sale of land as business income. The aforementioned facts very clearly show that this is only a change of opinion. 12. Relying on the judgement of Bombay High Court in the case of BCCI vs. ACIT (21 taxmann.com 103) (Bom), we are of the opinion that the AO has only changed his opinion after four years from the end of the assessment year to reopen the assessment which had already completed u/s. 143(3) of the Act. Therefore, reopening is invalid as per law. Further the Apex Court in the case of CIT vs. Kelvinator India Ltd. (320 ITR 561) held as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
