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TMI Blog2014 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the assessee that the reassessment, which is made beyond the period of four years when there is no defect of disclosure from the assessee's side, is not valid. 2. In the regard, at the very outset, the Ld. Counsel for the assessee mentioned before us that the assessment made u/s.143(3) of the Act on 29.03.2001 was reopened on 31.03.2005 for three reasons and the said reasons are placed at page 12 of the paper book. The Ld. Counsel brought out each of the three reasons and mentioned that the said reasons are not sustainable legally for the following reasons. The assessment is reopened either on the basis of the information already furnished by the assessee along with the return of income or during the regular assessment proceedings, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no extraneous or tangible material gathered by the A.O. which worked as a "live wire" for facilitating reopening of the assessment validly. Considering the above, the Ld. Counsel mentioned that it is the case of "change of opinion" and there is no failure on part of the assessee to disclose any material/or facts necessary for making assessment in the return of income or in the regular assessment. Therefore on this reasoning, the first issue relating to section 2(22)(e) of the Act is misconceived. Therefore, it is the prayer of the assessee's counsel that the reassessment made on this issue should be dismissed. 3. On the other hand, Smt. S. Padmaja, the ld. CIT-DR for the Revenue relied heavily on the reassessment order of the A.O. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the head 'Capital Gains'. Per contra, it is the case of the A.O. that the said gains should be taxed under the head 'Business Income'. There is no dispute on the fact that the said gains are short term capital gains and they are earned on the sale of shares/units. During the proceedings before us, at the very outset, the Ld. Counsel brought our attention to page no. 23 of the paper book and mentioned that the assessee reported the short term capital gains of Rs.3,90,155/-. Further, he brought our attention to the copy of the reassessment order and read out the "note" of the A.O. left on page 11 of the assessment order and the same reads as under: "Note: As discussed in para (8) above, the Short Term Capital Gain received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd mentioned that the said details were available as disclosed by the assessee to the A.O. and the assessment was completed without making addition on this account after examining the relevant details. There is no defect of disclosure on this issue also on part of the assessee. Therefore, the proviso to section 147 of the Act has no application. On perusal of the said pages, which is a reply letter filed by the assessee to the A.O. vide his reply dated Nil, we find the issue was the subject matter of enquiry during the regular assessment proceedings. Hence, there is no reason for the A.O. to reexamine the same under the provision of section 147 of the Act. Therefore, the reassessment order made by the A.O. on this issue is not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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