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2014 (1) TMI 229 - ITAT KOLKATADisallowance of Expenditure – Share trading expenses taken as 50% of total expenses in place of 96.11% - Expenses calculated without any actual calculation basis - Reopening of Assessment u/s 147 of the Act - Held that:- Following ACIT Mumbai and Ors. Vs ICICI Securities Primary Dealership Ltd. [2012 (8) TMI 754 - SUPREME COURT] - the assessee has furnished a copy of the order which directly goes to the root of the question raised by the Revenue whether for determining the income on the basis of the share trading could the loss be disallowed on finding the speculation loss which could be allowed in accordance with the provision of section 73 whether would be for re-assessment of finding of income having escaped or disallowance of expenditure claimed for earning such income - The assessee being a limited company was holding shares as investment and also for trading, therefore cannot be subject itself to determine the speculation loss, if any, was not to be tinkered with under the provision of section 147/148 of the Act. The appeal of the Revenue does not have legs to stand on and has to be dismissed - However, on the issue raised by the assessee-appellant as Cross Objection regarding the validity of reopening Relying upon SC’s decision brought on record as of now was to be considered, in so far as, the ld. CIT(A) did not distinguish another Apex Court’s decision in the case of CIT vs Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] - which was brought to the notice of the CIT(A) by the assessee that the law is settled that the change of opinion cannot be the basis for a reason to believe and review of the order u/s 147 of the Act - the CIT(A) has erred in not holding the assessment u/s 147 of the Act – Decided against Revenue and in favour of Assessee.
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