9911796707
TMI Blog2013 (7) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... ried on the business, inter alia, of actual delivery based purchase and sale of shares and speculation business in shares. The petitioner suffered a loss of Rs. 11,49,39,400 in business of share dealing and a loss of Rs. 5,50,95,999 in speculation business. The petitioner earned short-term capital gain of Rs. 1,57,23,404 and long-term capital gain of Rs. 10,86,84,635 and dividend income of Rs. 9,26,000 during the previous year. On October 22, 2001, the petitioner filed return under the Act for the said assessment year showing a total income of Rs. 94,68,640 comprising the said business loss, the said speculation loss, the said short-term capital gain and the said long-term capital gain. In the assessment proceedings, the Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 11,11,77,739 as deemed speculation loss within the meaning of the Explanation to section 73 of the Act and the Assessing Officer was directed to frame the assessment in the light of the direction contained in the said order. Pursuant to the order under section 144A, respondent No. 3 by assessment order dated March 31, 2004, under section 143(3)/144A completed the assessment by passing an assessment order. However, after completion of the assessment proceedings, the petitioner received the impugned notice dated March 31, 2006, under section 148 of the Act for the said assessment year on the ground that the said respondent had reasons to believe that the income of the petitioner chargeable to tax under the Act for the said assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. After notice under section 148 was served, the petitioner by a representation dated August 21, 2006, prayed for its cancellation. Thereafter, writ petition was moved on September 19, 2006, when direction was issued for filing of affidavits and an interim order was passed restraining the respondents from reopening the assessment. Further, the Assessing Officer was directed to pass a reasoned decision on the objection filed by the petitioner to the impugned notice. Consequently, the Assessing Officer by letter dated September 22, 2006, replied. Mr. Murarka, learned advocate appearing on behalf of the petitioner, supporting the statements in the writ petition has contended that a view taken by the Assessing Officer which was negatived by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant portion of section 144A, which is as under : "A Joint Commissioner may, on his own motion or on a reference being made to him by the Assessing Officer or on the application of an assessee, call for and examine the record of any proceeding in which an assessment is pending and, if he considers that, having regard to the nature of the case or the amount involved or for any other reason, it is necessary or expedient so to do, he may issue such directions as he thinks fit for the guidance of the Assessing Officer to enable him to complete the assessment and such directions shall be binding on the Assessing Officer:" (emphasis supplied) As seen, section 144A envisages that not only the Joint Commissioner has been granted discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident from the records that there has been no change. Rather facts are similar. Therefore, as the Assessing Officer is trying to reopen and reappraise the assessment on the same set of facts, in my view, it is a mere change of opinion. Secondly, had the Department considered the order passed under section 144A prejudicial to the interests of the Revenue, it could have invoked the provisions contained in section 263, which it did not. Therefore, the order passed under section 144A, which has a "binding" effect on the Assessing Officer, became final and cannot be reopened by issuing the impugned notice under section 148. That direction under section 144A has a "binding" effect is clear since statute postulates that "A Joint Commissioner . . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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