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Jayesh Raichand Shah Versus Assistant Commissioner of Income-tax - 2013 (1) TMI 598 - GUJARAT HIGH COURT

Validity of notice u/s 148 Reopening of assessment - Escaped assessment Speculation loss - Assessee had claimed loss from speculative transaction - Transactions for trading in gold and silver futures on commodities exchange MCX Held that - It is trite law that the notice for reopening must stand or fail on the basis of reasons recorded by the A.O. for issuing such a notice. The case of the assessee was that by virtue of clause (a) of sub-section (5) of section 43, the same would not be treated as speculative transaction. It is not the case of the A.O. in the reasons recorded for reopening the assessment that for any particular reason such claim under clause (a) was not acceptable. A transaction of hedging to fall under clause (a), there are certain conditions to be fulfilled. However, we are afraid such a contention cannot be accepted for two reasons. Firstly, any attempt on the part of the Assessing Officer now to fall back on the conditions required to be satisfied for application of clause (a) would amount to change of reasons recorded for reopening. Secondly, any such inquiry would be wholly a fishing inquiry - In favour of assessee


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