TMI Blog2013 (6) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... he said original assessment order passed u/s.143(3) dated 24.12.2007, which says that books of accounts, bills, vouchers, etc. were produced during the course of hearing which were verified and test-checked. An another observation made by the AO that the assessee was investing his own funds in the shares markets and earning out of it. Due to these reasons, the facts of the case have amply demonstrated that on the basis of the information available on record the AO had taken a conscious decision to assess the profit as short-term capital gain in the hands of the assessee. Therefore where an AO undertakes scrutiny assessment & on those very facts and details already on record the reopening can be held as change of opinion. See Gujarat Power Corporation Ltd. [2012 (9) TMI 69 - Gujarat High Court] - In favour of assessee. - I.T.A.No.2535/Ahd/2012 - - - Dated:- 30-4-2013 - Shri Mukul Kr. Shrawat And Shri T. R. Meena,JJ. For the Appellant : Shri Tej Shah For the Respondent : Shri D. K. Singh, Sr. D. R. ORDER Per Shri Mukul Kr. Shrawat, Judicial Member :- This is an appeal filed by the Assessee arising from the order of ld.CIT(Appeals)-II, Baroda dated 22/10/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007 and the hearing was fixed on 7.8.2007. 3. In response to the above, Shri C.P. Chandratre, C.A., duly authorized representative of the assessee attended the assessment proceedings from time to time and furnished relevant particulars in keeping with the requirements of the questionnaire issued along with the notices u/s.142(1) as well as in explanation of the return of income furnished by the assessee which are placed on record. The case was discussed with him in light of various and relevant documents furnished by the assessee. The assessee is in individual engaged in the business of operating a website namely "Valuerrupee.com" and gives the recommendation to his customer from whom he is charging consulting fee. He is also regularly giving his article to daily newspaper published from Surat namely "Gujarat Mitra". This is generating consultancy income for him. Further, he is also investing his own funds in the share market and earning gain out of it. Books of accounts, bills, vouchers, etc. produced during the course of hearing have been verified on test check basis. During the course of such perusal and discussion, following issues were raised." 4.1. Ld.AR has also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite information in respect of the correctness of the short term capital gain was duly informed to the AO and on being satisfied it was assessed accordingly by accepting the claim of the assessee. The AO has later on changed his mind although there was no new information in the possession of the AO. Based upon those very facts and information which were already on record the AO had opted to take an another view although he had duly applied his mind earlier, hence such a reason for reopening of the assessment was bad in law. Reliance was placed on (1) Rutu Investments (P.) Ltd. vs. Dy.CIT [2012] 21 taxmann.com 320 (Delhi) order dated 22/11/2010 (2) Gujarat Power Corpn.Ltd. vs. Asst. CIT [2012] 26 taxmann.com 51 (Guj.) order dated 30/07/2012. 5. From the side of the Revenue, ld.Sr.DR Mr.D.K.Singh has supported the reopening and argued that the original assessment order was absolutely silent on this issue. It is not apparent whether the AO had applied his mind in respect of the issue that whether the gain in question was capital gain or a business income. On the basis of the volume and the nature of frequency of the share transactions, the AO had rightly held that the assessee was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after examining the accounts of the assessee formed an opinion, then on those very facts and details already on record, specially if there is no subsequent information in possession of the AO, then the reopening on those very facts and circumstances can be held as change of opinion. To buttress this opinion, we hereby follow a decision of the Hon'ble Jurisdictional High Court pronounced in the case of Gujarat Power Corporation Ltd. 26 taxmann.com 51 (Guj.) order dated 30.07.2012, wherein it was held as under:- "25. From the statutory provisions contained in section 147 of the Act, as interpreted by the decisions noted above, it would emerge that an assessment previously framed can be reopened within a period of four years if the Assessing Officer has some tangible material at his command on which he has reason to believe that income of the assessee chargeable to tax has escaped assessment. The additional requirement that such escapement of income is due to failure on the part of the assessee to disclose truly and fully all material facts is not there. When the Assessing Officer frames an assessment, but does not visit a certain claim put-forth by the assessee, neither accepts no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that each case must depend on facts individually and in a given case, it may be possible for the assessee to argue that all aspects of the claim were examined or that different facets of the claim were so inextricably interlinked that the assessing officer must be taken to have examined the entire claim. We only clarify that our answer to the second question must be seen within the limited scope of the question itself." "51. In our opinion, any such reopening would be based on a mere change of opinion. In the reasons, the Assessing Officer started with the words, "from the records, it can be seen that.....". Entire information and the material that the Assessing Officer, therefore, had at his command was reflected from the record itself. This coupled with the fact that in the original assessment, the Assessing Officer examined such claims in detail, would convince us that any reopening of the assessment of same claims on the basis of same material, amounts to a mere change of opinion. The fact that the Assessing Officer did not record reasons for making no disallowance on such claim of exemption, would be of no consequence." 6. Respectfully following the decision of Hon'ble Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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