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2015 (10) TMI 2734 - AT - Income TaxGain on sale of shares - long term capital gains OR short term capital gains - Held that:- In the case of the appellant the transaction is real, all legal formalities have been complied with and what is transferred is the shares and not immovable property. The findings of the Assessing Authority that it is a transaction of immovable property is contrary to law and contrary to the material on record. The Karnataka High Court held that if the veil of the company is lifted, what appeared to them is transaction of immovable property. Such a finding is impermissible in law. In the case of M/s. Bhoruka Engineering Industries Ltd (2013 (7) TMI 543 - KARNATAKA HIGH COURT), the assessee traded the shares in Magadh Stock Exchange and paid the transaction fee and claimed the Long Term Capital Gains as exempt. In the case of the assessee, she paid the Long Term Capital Gain on the sale of shares as per the requirement of law. Reopening of assessment - calculation of capital gains on sale of equity shares - Held that:- As noted that the calculation of capital gains on sale of equity shares of Ganesar Ginning Mills Ltd has been verified by the then Assessing Officer based on the relevant facts and materials submitted by the assessee and the Assessing Officer has accepted the stand of the assessee in respect of calculation of capital gains on sale of shares. In such an eventuality in an assessment u/s.143(3) where there has been no failure on the part of the assessee in disclosing truly and materially all facts relating to the case, the assessment cannot be reopened after 4 years time limit which was completed on 31.03.2012 as per the proviso to section 147 of the Act. There was no allegation by AO that there was failure on the part of the assessee to disclose the materials, facts truly and correctly for the period of assessment. Being so, since the assessment was reopened after four years from the end of the relevant assessment year when the original assessment was completed u/s.143(3), this issue is squarely covered by the judgment of Supreme Court in the case of CIT vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA]. AO precluded from reopening the assessment - Reopening of assessment is invalid - Decided in favour of assessee.
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