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2013 (5) TMI 304 - AT - Income TaxRe opening of assessment - addition on account of long term capital gains on treating the assets sold as commercial asset and re-working the written down value (WDV) and thereby denying the indexed cost of acquisition - Held that:- Respectfully following the proposition of law laid down in case of CIT vs. Jet Airways (I) Ltd.[2010 (4) TMI 431 - HIGH COURT OF BOMBAY] as followed by different High Courts Ranbaxy Laboratories v/s CIT, [2011 (6) TMI 4 - DELHI HIGH COURT] and the CIT v/s Mohmed Juned Dadani [2013 (2) TMI 292 - GUJARAT HIGH COURT] wherein concluded that the AO may assess or reassess the income in respect of any issue which comes to his notice subsequently in the course of the proceedings though the reason for such issue were not included in the notice, however, If after issuing the notice under section 148, the AO accepts the contentions of the assessee and holds that the income which he has initially formed a "reason to believe" had escaped assessment, which, later on, has been found as a matter of fact that it has not escaped assessment, then it is not open to the AO independently to assess some other income. Thus the addition of Rs. 6,47,144, on account of long term capital gain as assessed by the AO is beyond the scope of income escaping assessment under section 147. Further, agreing with the contentions of the assessee the view taken by the AO in the present assessment order amounts to "change of opinion" as not only the issue of long term capital gain but also the exemption under section 54EC and sale consideration has been examined by the AO and thereafter he accepted the Assessee's computation. There is no new material on record to show that the Assessee's computation and the claim is erroneous. Accordingly, on this count also, the re-opening under section 147 is invalid in the eyes of law. Thus, on the preliminary ground itself, the addition made by the AO in the long term capital gain gets vitiated. Consequently, the impugned order passed by the Commissioner (Appeals) is set aside and the ground raised by the Assessee is treated as allowed.
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