Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2015 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (10) TMI 993 - AT - Income TaxValidity of reopening of assessment - set off of short term capital gain derived from sale of shares against long term capital loss is not permissible as per section 74(i)(b) and gain derived from sale of house property has to be assessed as STCG and cannot be set off against brought forward business losses as the assessee is engaged in the business of dealing with securities - Held that:- Reopening of assessment in the instant case is not only on a mere change of opinion but also amounts to review of the assessment order passed earlier u/s 143(3) of the Act. That part, there being no failure on the part of the assessee in disclosing truly and fully all material facts reopening of assessment after expiry of four years from the end of the assessment year is clearly against the statutory mandate, hence, is without jurisidiction. In case of Parashuram Pottery Works Co. Ltd. V/s. ITO, Circle-I, Ward A, Rajkot (1976 (11) TMI 1 - SUPREME Court) held that the duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts. Once he has done that his duty ends. It is for the ITO to draw the correct inference from the primary facts. It is no responsibility of the assessee to advise the ITO with regard to the inference which he should draw from the primary facts. If an ITO draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening the assessment. In case of CIT Vs. Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA] held that reopening of assessment in absence of fresh tangible material and on consideration of very same material considered in the original assessment will be on a mere change of opinion. Therefore, considering the facts of the present case vis-à-vis the relevant statutory provision as well as in the light of ratio laid down by the Hon’ble Supreme Court referred to above, we do not find any infirmity in the order of the learned CIT(A) in cancelling the impugned assessment order. Accordingly, we uphold the same by dismissing the grounds raised by the department. - Decided in favour of assessee.
|