TMI Blog2014 (8) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... the attempt on the part of the AO now to tax the receipt as a business income would be a mere change of opinion - on mere change of opinion by the AO, the reopening of the assessment beyond the period of four years from the relevant assessment year is not permissible - Relying upon MAPS ENZYMES LTD. Versus DEPUTY COMMISSIONER OF INCOME TAX [2014 (3) TMI 28 - GUJARAT HIGH COURT] - on mere change of opinion by the AO subsequently, initiation of reassessment proceedings is not valid - The notice for reopening the assessment issued u/s 148 of the Act and the order disposing of the objection are set aside – Decided in favour of Assessee. - Special Civil Application No. 3342 of 2014 - - - Dated:- 8-8-2014 - M. R. Shah And K. J. Thaker,JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in statement duly certified by Portfolio Manager, M/s. Kotal Securities Limited for Assessment year 200607. That thereafter, the Assessing Officer passed scrutiny assessment order under Section 143(3) dated 22.12.2008 wherein he specifically dealt with the issue of capital gains, interest and dividend income declared by the petitioner and made a small disallowance of ₹ 9676/viz. NSDL charges claimed by the petitioner. That thereafter, the petitioner has been served with the notice dated 26.12.2012 issued by the Assessing Officer under Section 148 of the Act informing the petitioner that he had reason to believe that income had escaped assessment and asked the petitioner to file the return within 30 days of the receipt of the said noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to disclose fully or truly all material facts, reopening of assessment is not permissible. It is submitted by Shri Shah, learned advocate for the petitioner that in the present case in the reasons recorded by the AO there is no suggestion that the income chargeable to tax escaped assessment for the reasons that the assessee failing to disclose truly and fully all material facts. 3.1. It is further submitted by Shri Shah, learned advocate for the petitioner that as such the original assessment was framed after scrutiny and sale of shares was the sole source of income of the assessee during the year under consideration and the assessee claimed that such receipt was in the nature of capital gain. It is submitted that as such the AO in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening of the assessment beyond the period of four years from the relevant assessment years is just and proper. It is further submitted that even the objection raised by the petitioner against the reopening of the assessment has been dully considered by the AO. 4.1. It is further submitted that on going through the records, it is seen that the petitioner during original assessment proceedings had not produced general power of attorney through which all the transactions were entered by the assessee. It is further submitted that even before this Court also the petitioner has not disclosed the power to attorney who conducts its transactions in India, since he is a NRI. It is further submitted that looking to the volume of transactions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutinized the claim of the assessee and to small extent, when he found the same was not allowable, also made disallowance. From the reasons recorded by the AO for issuing present notice for reopening of the assessment, it appears that now it is the case on behalf of the AO that income derived by the assessee from sale of shares, mutual funds etc. was required to be assessed as income from business and not as income from capital gain. Under the circumstances, now attempt on the part of the AO now to tax the receipt as a business income would therefore, be a mere change of opinion. As per the catena of decisions, it is held that on mere change of opinion by the AO, the reopening of the assessment beyond the period of four years from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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