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2016 (5) TMI 404 - AT - Income TaxReopening of assessment - income from speculation - Held that:- Learned AO had duly applied his mind on the impugned issue on the taxability of share trading profits as ‘income from speculation’. To this extent, the reasoning given by the Learned CIT(A) for upholding the validity of reassessment is not justified. We also hold that the Learned AO by his judicial behaviour in the original assessment proceedings u/s 143(3) of the Act had indeed formed an opinion on proper application of mind. We also agree with the arguments of the Learned AR that there is no fresh tangible material available with the Learned AO to justify the impugned action of resorting to reopen the assessment. We hold that where there was no new material or information which came to the knowledge of the Learned AO to re-initiate proceedings and since he had derived the facts and materials placed by the assessee itself during the original assessment proceedings , that did not constitute new information. Hence subsequent action on the part of the Learned AO in reopening the assessment based on the same materials available on record would only amount to re-appreciation of existing facts already on record which would amount to review and would only tantamount to change of opinion. Moreover we find that the proviso to section 147 of the Act would come into play in the facts of the instant case as admittedly the reopening is done after the end of 4 years from the end of the relevant assessment year. Then it is the duty of the Learned AO to prove as per the proviso that the reopening is warranted due to failure on the part of the assessee by not making full and true disclosure of material facts necessary for assessment. This crucial condition is conspicuously absent in the facts of the present case and hence reopening beyond 4 years could not be done even as per the statute. - Decided in favour of assessee.
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