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2023 (5) TMI 280 - HC - Income TaxReopning of assessment u/s 147 - bogus LTCG - assessee claimed to have purchased shares of the penny stock scrips which was sold and LTCG was claimed which was denied it will be treated as unexplained investment/income from other sources and not a capital gain - HELD THAT:- We find nothing to indicate failure to disclose any material fact. Upon examining the order u/s 143(3) we find that the AO has considered these very transactions and added to the total income on which the Petitioner has already paid the tax. We find no substance in the AO’s reason to believe that income chargeable to tax has escaped assessment in as much as there is no mention of any tangible material that led to his conclusion. The entire process is triggered on a change of opinion as to the calculation of tax payable by the assessee. As stated hereinabove, it is evident that bald assertions of the transaction being “an accommodation entry made in collusion & connivance with the entry provider” are used to re-open the assessment. It is well settled judicial principal that, the true test of income chargeable to tax escaping assessment is whether there exists fresh “tangible material” on the basis of which appropriate conclusion is reached. In the absence of such material the reassessment proceedings would be invalid. This principle has been upheld by the Apex Court as well as the jurisdictional High Courts in various rulings. Furthermore, this Court has held that reconsideration of the material available at the time of original assessment proceedings tantamount to change of opinion and therefore invalid. Decided in favour of assessee.
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