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2013 (6) TMI 523 - AT - Income TaxReopening of assessment - show cause as to why the short-term capital gain should not be treated as a business income - assessee informed that earlier an assessment u/s.143 according to which the short-term capital gain was assessed as such - Held that:- Records of the assessee have demonstrated that a return of income along with the computation of total income was filed by the assessee wherein disclosed the profit under the head "short-term capital gain" and paid the tax accordingly. Also noted that the assessee has furnished the P&L account drawn as on 31.3.2005 and therein also there was clear mention of the gain earned on share transaction. When the assessment proceedings were going on, then a questionnaire has been issued dated 11.5.2007, as well as a notice u/s.143(2)/142(1) & as per query No.13 of the questionnaire, the assessee was required to furnish and justify the short-term capital gain along with complete documentary evidences which the assessee furnished before the AO at the time of assessment proceedings. On due verification of all those details, the AO had made an observation in the said original assessment order passed u/s.143(3) dated 24.12.2007, which says that books of accounts, bills, vouchers, etc. were produced during the course of hearing which were verified and test-checked. An another observation made by the AO that the assessee was investing his own funds in the shares markets and earning out of it. Due to these reasons, the facts of the case have amply demonstrated that on the basis of the information available on record the AO had taken a conscious decision to assess the profit as short-term capital gain in the hands of the assessee. Therefore where an AO undertakes scrutiny assessment & on those very facts and details already on record the reopening can be held as change of opinion. See Gujarat Power Corporation Ltd. [2012 (9) TMI 69 - Gujarat High Court] - In favour of assessee.
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