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TMI Blog2022 (12) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... RDER] Admittedly, the AO on verification of the same set of documents which were available during the original proceedings formed reasons to believe that there is an escapement of income on account of exemption claimed on the sale of shares. In view of the above, we hold that the proceedings initiated under section 147 of the Act are not sustainable and therefore liable to be quashed for the reasons discussed above. Hence, the ground of cross objection raised by the assessee is hereby allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... tal gain for Rs. 2,29,13,255/- only on sale of bonus shares received in the immediate preceding year whereas the original share acquired by the assessee in immediate preceding year was sold in that year only immediately after credit of bonus share at profit. In the balance sheet for the year ending 31st March 2007 the assessee has shown investment of Rs. 1 crore in the shares of M/s Parvin Ratilal Shares and Stock Broker Ltd only. The bonus share of different companies which were sold by the assessee in the year under consideration i.e. F.Y. 2007-08 has not been considered as investment in the balance sheet ending as on 31st March 2007. Hence the sale proceed from the sale of bonus shares were in the nature of trading receipt and not the capital receipt as claimed by the assessee. Therefore, the income to the extent of Rs. 2,29,13,255/- escaped the assessment. 4.2 The assessee objected the reopening by contending that notice under section 148 of the Act was served on assessee after the expiry of 4 years from the end of relevant assessment year i.e. time limit to serve notice was expiring on 31st March 2013 whereas the same was served as on 1st April 2013. 4.3 The assessee further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started by the A.O., it may happen that the notice is served after the expiry period of four or six years from the end of the relevant assessment year. Since the appellant has participated in the reassessment proceedings after disposing off the objections filed by it and in compliance to notice u/s.143(2) of the Act, the objection now raised in relation to belated service of notice u/s.148 of the Act on 01.04.2013 has no relevance in view of the provisions of section 292BB of the Act. Considering these facts, the ground no.2 of the appeal is dimissed. 7. Being aggrieved by the order of the learned CIT(A), the assessee is in cross objection before us. 8. The learned AR for the assessee before us filed a paper book running from pages 1 to 136 and contended that the reopening was made by the AO under the provisions of section 147 of the Act without having any fresh material. As such, the AO on verification of the same set of books of accounts which were available during the original proceedings initiated the proceedings under section 147 of the Act which is nothing but change of opinion. According to the learned AR the proceedings under section 47 of the Act are not sustainable. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e verification of the case records which were available with the AO during the original assessment proceedings framed under section 143(3) of the Act. In the reason recorded there no whisper that the AO was having any fresh tangible material. Thus, the reopening of the assessment was initiated on the basis of same set of document already available with the AO at the time of regular assessment which is nothing but change of opinion. To our considered opinion reopening of assessment cannot be initiated in absence of fresh material or based on change of opinion. In holding so we draw support and guidance from the judgment of Hon'ble Supreme Court in the case of PCIT vs. Fibers and Fabrics International (P.) Ltd. reported in 139 taxmann.com 562 where the Hon'ble Supreme Court upheld the following finding of the Hon'ble Karnataka High Court: 11. It is pertinent to mention that no material was gathered in the survey proceeding to suggest that expenditure incurred towards sales commission is not an allowable expenditure and disallowance made in respect of the expenditure for the subsequent Assessment Year 2006-07 cannot be a ground for reopening the assessment. The tribunal has therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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