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TMI Blog2024 (7) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed supra in this order and in the finding of ld. CIT(A) that in the original assessment proceedings, the AO has specifically raised issue regarding information received from DIT(Investigation) Kolkata relating to claim of long term capital gains from operators and the AO has obtained the various explanation of the assessee and did not make any addition after raising the issue in the show cause notice issued. During the course of assessment proceedings before us the assessee has also referred the decision of Kalpataru Land P. Ltd. [ 2022 (10) TMI 365 - SUPREME COURT] and case of TechSpan India (P) Ltd. [ 2018 (4) TMI 1376 - SUPREME COURT] on the proposition that when the assessing officer finalised the assessment and passed assessment order subsequent reopening can be said to be change of opinion on the similar information. CIT(A) held that reopening of the assessment for the assessment year 2014-15 is bad in law as the conditions precedent for invoking the provision for reopening of the assessment are not complied, therefore, the assessment order passed u/s 143(3) r.w.s 147 of the Act was quashed. No infirmity in the decision of ld. CIT(A) and the ld. CIT(A) has rightly quashed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has done very smartly some non existent transactions of some other shares were made part of the contract note(s) along with the shares of M/s Shree Shaleen Textiles Limited during the relevant year as discussed in the reassessment order. 7. Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) is right in ignoring the facts that the assessee has filed ITR-1 and showed short term capital gain of Rs. 4,73,565/- under the head Income from other Sources under the tag income from share but actually any individual assessee who has earned capital gain during the year has to file ITR-2 only. 8. The Appeal is being filed as it is covered under the exception provided in Para 10(e) of the CBDT;'s Circular No. 3 of 2018 Dated. 11.07.2018, as amended vide F. No. 279/ Misc. 142/200 7-ITJ(Pt), Dated. 20.08.2018. 9. The appellant craves leave to amend or to alter any ground or add a new ground, which may be necessary. 2. Fact in brief is that in this case return of income declaring total income at Rs. 8,61,010/- was filed on 12.08.2010. The case was subject to scrutiny assessment and notice u/s 143(2) of the Act was issued on 29.07.2016. The assessment order u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2016. The ld. Counsel referred copies of notices issued by the AO at the time of original assessment proceedings wherein the AO had asked various details pertaining to the transactions in the shares of M/s Shree Shaleen Textiles Ltd. and claiming exempt income u/s 10(38) as capital gain. The ld. Counsel also referred the various submission made by the assessee in response to the queries raised by the assessing officer during original assessment proceedings. 7. Heard both the sides and perused the material on record. Without reiterating the facts as discussed above, the ld. CIT(A) has also referred in his order that in the original assessment proceedings the AO had issued show cause notice dated 19.12.2016 wherein the assessee was asked to show cause as to why claimed exemption u/s 10(38) of long term capital gain of Rs. 1,49,99,418/- on sale of shares of M/s Shree Shaleen Textiles Ltd. be not treated as unexplained cash credit u/s 68 of the I.T. Act by treating the same as a sham transaction. In the show cause notice the AO had also referred the information received from the Director of Income Tax (Inv.) Kolkatta relating to bogus long term capital gains arisen on sale of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. The relevant part of the finding of the ld. CIT(A) after perusal of the various submission filed by the assessee during the original assessment proceedings is reproduced as under: 6.21 Further, there are plethora of other judgments and decisions by the various courts of law on the point that mere change of opinion cannot be per se reason to reopen as under:- German Remedies Ltd vs. DCIT Ors (2006) 285 ITR 26 (Bom.) Siemens Information System Ltd vs. ACIT (2007) 295 ITR 333 (BOM) Techspan India (P) Ltd Anr Vs. ITO (2006) 283 ITR 212 (Del) (Assessment Year 2001-2002) Karthikeya International vs. CIT (2010) 329 ITR 539 (All) Godrej Agrovet Ltd 323 ITR 97 (Bom) Aakash Land Developers ITA No. 7350/M/2008 7351/M/2008 dated 29/10/2010 6.22 Further, the provisions of sec 147 of the Act can be applied wherein in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the AO based on the principle that the taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority. However, in the instant case, the information was very much available with the AO on the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotment through private placement. Whether allotment was made in a private company and the private company merged with a listed company Purchased on stock exchange. 7. Please furnish the details of the payments made for purchase of such shares on which LTCG / STCL claimed. 8. Please state whether any bonus shares were issued. Please state whether the share was split into multiple shares with reduced face value. 9. Please furnish the details of broker provide copy broker ledger broker notes Global Report of share transactions. 10. Copies of your bank statements from which the shares were purchased also the copies of bank account in which the sale proceeds of the shares are received. 10. In response vide letter dated 09.12.2016 the assessee has submitted the various detail asked by the assessing officer. The assessee has filed all the contract notes of sale and purchase of the shares of M/s Shree Shaleen Textiles Ltd. placed at page no. 16 to 39 on the paper book filed by the assessee. The assessee has also referred notice u/s 142(1) issued by the assessing officer on 09.12.2016 wherein the AO has categorically mentioned that information has been received from the Directorate Kolka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provided the detail relating to the fact that purchase and sale of shares were made through banking channels on the stock exchange through registered broker at the prevailing market rates. The assessee again reiterated her statement that in the original assessment proceedings the necessary details pertaining to the issue of exempt income earned on the sale of shares were called for and same were submitted before the assessing officer. It is also submitted that since the case was reopened beyond period of 4 years and there was no failure on the part of the assessee for not disclosing fully and truly all the material fact before the AO at the time of original assessment proceedings. Therefore, reopening of the assessee s case u/s 148 is not valid. We have perused the copies of various document placed in the paper book submitted by the assessee. It is noticed that during the course of original assessment proceedings vide notice issued u/s 142(1) of the Act on 31.08.2016, 30.11.2016 and show cause notice issued on 19.12.2016 the assessing officer has categorically made detailed investigation and verification by calling various details in respect of sale and purchase of shares of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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