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2018 (12) TMI 1498 - AT - Income TaxReopening of assessment - application of higher rate of tax @30% on certain Short Term Capital Gains [STCG] of ₹ 343.94 Lacs as against 15% assessed u/s 143(3) - Held that:- AO could not be granted second chance to have a relook at the matter without there being any cogent material on record which comes to his possession subsequently so as to justify reopening. Hence, we are of the opinion that reassessment proceedings stood vitiated for want of fulfillment of primary conditions as envisaged by Section 147 since Ld. AO had formed an opinion during assessment proceedings u/s 143(3) and adopted one of the possible view. Therefore, reopening was not justified on mere change of opinion. Hence, we agree with the conclusion drawn by Ld. CIT(A), though on different reasoning, that reassessment proceedings stood vitiated for want of fulfillment of jurisdictional condition as envisaged by law. Finding no infirmity in the stand of first appellate authority, we dismiss this ground of revenue’s appeal whereas the grounds raised by assessee, under Rule 27, in this regard, stands allowed. So far as the merits of the case is concerned, CIT(A), in our opinion has clinched the issue in right perspective since there is no bar under law from setting-off of the Short Term Capital Loss (STT Paid) suffered from transactions carried out through recognized stock exchange against the Short Term Capital Gains realized from off-market transactions. The same is in line with the statutory provisions of Section 74(1)(a). No infirmity in the impugned order, in this regard. The grounds raised by revenue stands dismissed. Resultantly, the revenue’s appeal stands dismissed. Disallowance u/s 14A - MAT computation - Held that:- We concur with the stand of Ld. AR that the matter stood squarely in assessee’s favour by the decision of Delhi Tribunal (Special Bench) rendered in ACIT Vs. Vireet Investment (P.) Ltd.[2017 (6) TMI 1124 - ITAT DELHI]. We hold that adjustment of disallowance u/s 14A was not required to be made in Book Profits for the purpose of Section 115JB. See M/S JSW ENERGY LTD. [2015 (5) TMI 823 - BOMBAY HIGH COURT]. Resultantly, the appeal stands allowed.
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