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TMI Blog2022 (4) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... n which is not permissible. Revision u/s 263 on Assessment of profit on sale of investment - We are in agreement with her in as much as in the assessment order dated 28th December, 2010, the assessing officer has recorded that assessee has in the profit and loss account shown profit on sale of investment. He has also recorded that assessee has carried out activities only in respect of capital gains. In fact, by this conclusion he has disallowed certain expenses and has added it back to total income by assessee as per Section 37(1) of the said Act. Therefore, issue raised by the assessing officer to reopen has been in the active consideration of the assessing officer who passed the original assessment order dated 28th December, 2010. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assessing officer, properties sold should have been treated as business income and not capital gains. 2] It is Petitioner s case at the outset, that the reasons to reopen is recorded after the notice has been issued. On this ground alone, the notice has to be quashed and set aside. It is also Petitioner s case that the same issue which is mentioned in the reasons for reopening was a subject matter of consideration during the assessment proceedings and the assessment order dated 20th December, 2010 in fact even discussed this item. Therefore, reopening is based on change of opinion which is not permissible. Third point of challenge to notice is the very subject matter of reasons for reopening was a subject of revision proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of ₹ 85,62,314/-. He has also recorded that assessee has carried out activities only in respect of capital gains. In fact, by this conclusion he has disallowed certain expenses and has added it back to total income by assessee as per Section 37(1) of the said Act. Therefore, issue raised by the assessing officer to reopen has been in the active consideration of the assessing officer who passed the original assessment order dated 28th December, 2010. Therefore, it is a clear case of change of opinion and it is not permissible to reopen based on change of opinions. 6] It is also correct that after the assessment order was passed, the Commissioner of Income Tax had commenced revision proceedings under Section 263 of the Act on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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