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TMI Blog2020 (9) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of the decision of CARGO CLEARING AGENCY (GUJARAT) [ 2008 (8) TMI 86 - GUJARAT HIGH COURT] we are of the considered view that reopening of the assessment which was framed u/s. 153 A of the Act is bad in law. AO clearly show that there was no application of mind while issuing of notice u/s. 148 of the Act in as much as had he gone through the assessment records of the assessee he would have seen the computation of income filed with original return income and also with the return of income tax in response to notice u/s. 153 A of the Act. If he had done this exercise he would have known that LTCG has not only been disclosed in the return of income but the same was also claimed to be exempt. Proceedings has been initiated on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises of the assessee on 22.03.2012 and the assessment was framed u/s. 153 A of the Act vide order dated 28.02.2014. 6. On 31.03.2016 notice u/.s. 148 of the Act was issued and served upon the assessee. The reasons for reopening the assessment read as under:- 7. A perusal of the above show that the completed assessment was reopened on the basis of the information received from the Investigation Wing, Kolkata by which the AO came to know that some brokers have affirmed that they were providing accommodation entries in the form of long term capital gain and one of the such scrip was Nouvea Multimedia. The AO was of the opinion that since the assessee has also dealt in the said company the LTCG of ₹ 76.73 lacs is nothing but accommod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction u/s. 147 of the Act the AO merely acted on suspicion and we cannot say that he had "reasons to believe". 14. In the garb of reassessment proceedings the AO sought to verify the same details on the strength of material which was already available on record. Duly considered and verified in the course of proceedings u/s. 153 A of the Act. Judgment of the Hon'ble Gujarat High Court in the case of Clearing Cargo Agency Vs. JCIT 307 ITR 1 (pages 31-52) is apt on the facts discussed here in above and the same read as under: emphasis is supplied by this court, that the Supreme Court was concerned mainly with computation of undisclosed income under section 158BB(1) of the Act. This court has already noticed that section 158BH of the Act p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions which becomes apparent on a plain reading. In the circumstances. as per the established rules of interpretation. unless and until a plain reading of the two streams of assessment procedure does not result in the procedures being independently workable, only then the question of resolving the conflict would arise. But to the contrary in the resent case in the light the provisions of section 158BH of the Act. once there is conflict between the two streams Q! procedure. as laid down by the apex court the provisions of Chapter XIV B of the Act shall prevail and have primacy. Thus, viewed from any angle, the stand of the Revenue does not merit acceptance. Once assessment has been framed under section 158BA of the Act in relation to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was framed u/s. 153 A of the Act, therefore, in the light of the decision of the Hon'ble Gujarat High Court (supra) we are of the considered view that reopening of the assessment which was framed u/s. 153 A of the Act is bad in law. 16. At para -11 of his assessment order the AO concluded as under :- "In view of the above discussion it can be concluded that the assessee has not disclosed LTCG made through penny stock amounting to ₹ 76.70 lacs for the year under consideration. Accordingly in LTCG of ₹ 76.73 lacs is added to the income of the assessee. 17. This observation of the AO clearly show that there was no application of mind while issuing of notice u/s. 148 of the Act in as much as had he gone through the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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