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2018 (3) TMI 1308 - AT - Income TaxReopening of assessment - “change of opinion” and “formation of opinion” - slump sale u/s 50B - Held that:- In the case of Usha International (2012 (9) TMI 767 - DELHI HIGH COURT), as held that the expression “change of opinion” postulates formation of opinion and a change thereof and that there is a difference between “change of opinion” and “formation of opinion”. In the case of Gujarat Power Corporation Ltd., (2012 (9) TMI 69 - Gujarat High Court) it was held that after 01.04.1989 power for reopening of assessment within four years are much wider. In the case before us, though the assessee has filed the copy of the business purchase agreement, the A.O has not formed any opinion about the nature of the capital gain arising therefrom and therefore, it cannot be a case of change of opinion. Therefore, we do not find any reason to interfere with the order of the CIT(A) on this issue and the cross objection of the assessee is rejected. On reopening of the assessment the entire issue was before the A.O and the assessee had made the alternate claim of applicability of Sec. 50B of the IT Act to the transaction as a slump sale and in support of said claim has filed the Form No. 3CEA. The requirement to file Form No. 3CEA along with the return of income is to substantiate the claim u/s 50B of the Act. In the original return of income, since the assessee has not made the claim, the assessee could not have filed the Form No. 3CEA along with the return of income. Its only during the reassessment proceedings, that the assessee had made an alternate claim and therefore, the CIT(A) has rightly directed the A.O to assess the transaction arising out of the BPA as a slump sale u/s 50B of the IT Act. As regards the consideration towards slum sale, the CIT(A) has not only taken the agreed price of ₹ 4,00,00,000/- but also the additional consideration of ₹ 24,54,056/- as part of the consideration for all the assets listed in BPA. The assessee has not raised any ground of cross objection against treating the additional consideration also as the sale consideration for transfer of business u/s 50B of the IT Act. Therefore, the assessee has accepted the entire sale consideration to be ₹ 4,24,55,056. Since the CIT(A) has only remitted the issue to the file of the A.O for the considering the assessee’s alternate claim u/s 50B of the Act, we do not see any reason to interfere with the order of the CIT(A).
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