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2015 (4) TMI 866 - ITAT DELHIReopening of assessment - Change in Opinion based on same set of facts - Held that:- The learned CIT(A) upheld the reassessment proceedings merely on the reasoning that the Assessing Officer had not assigned any reason for accepting the capital gains made out of sale of shares as short term capital gains. This, in our view, cannot be a valid reason. If a claim made by the assesee in the return is not rejected, it stands allowed. If such a claim is scrutinized by the Assessing Officer during assessment, it means he was convinced about the validity of the claim. His formation of opinion is thus completed. Further, framing of the assessment order is not in the control of the assessee, therefore, for any omissions or commissions in the assessment order cannot be attributable to the assesee. In this connection, we rely on the decision of Hon’ble Gujarat High Court in the case of Gujarat Power Corporation Ltd. [2012 (9) TMI 69 - Gujarat High Court]. Further, there was no reference to any fresh material suggesting the escapement of income. In other words, the Assessing Officer was merely guided by change of opinion based on the same set of facts available on record at the time of framing the original assessment. It is settled proposition of law that even after the amendment in the provisions of Section 147/148 of the Act w.e.f. 01.04.1989 mere change of opinion cannot give rise to the valid reassessment proceedings. We are fortified by the view of Hon’be Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA]. Respectfully following the ratio laid down in the above cited case, we are of the opinion that even in the present case, in the absence of any fresh material as well as the proper reasons recorded, we have no hesitation to quash the reassessment proceedings. - Decided against the revenue.
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