9911796707
TMI Blog2014 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ove are stated in brief. The assessee was the managing director of a company named M/s Triumph Distellers & Vintners Pvt Ltd. During the year under consideration, he filed his return of income on 31.08.2006 declaring income from Salary, Professional fees from marketing consultancy, House property income, Capital gains from sale of investments and Dividend income. The assessee returned a total income of Rs. 2,54,93,804/-. It was processed u/s 143(1) of the Act. The said return of income was selected for scrutiny and the regular assessment was completed u/s 143(3) of the Act on 29.12.2008 accepting the income returned. It is pertinent to note the assessee had filed a revised return on 30-07-2007 revising the total income at Rs. 2,83,62,142/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l gain of Rs. 1.39 crores and claimed the same as exempt, but the AO did not disturb the said claim in the reassessment proceeding. 5. In the appeal filed by the assessee, the Ld CIT(A) held that the assessing officer has reopened the assessment on the basis of change of opinion and accordingly quashed the reopening. On merits also, the Ld CIT(A) also held that the gain arising on sale of shares is assessable as Short term Capital gain only. Aggrieved, the revenue has filed this appeal challenging the decision of Ld CIT(A) in respect of legal issue. 6. The Ld D.R submitted that the Ld CIT(A) was not justified in holding that there was change of opinion, since the assessing officer did not form any opinion about the impugned issue during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. 8. We have heard the rival contentions and perused the record. We notice that the AO has mainly re-opened the assessment only for assessing the Short term Capital Gain as Business income. The reasons for re-opening of assessment has been extracted by the AO as under:- (i) For the year under consideration, it is seen that the Assessee has fetched the income to the tune of Rs. 1,12,75,513/- from trading of shares and mutual funds. The amount has been offered for taxation under the head Short Term Capital Gains and taxes @ 10%. The assessee has also shown Long Term Capital Gain of shares at Rs. 1,39,77,427/- which is claimed as exempt; (ii) On perusal of the details furnished, with respect to the list of share transactions on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has earned huge income from long Term Capital Gains claimed as exempt and Short Term Capital; gains taxable at lower rate" We have already noticed that the original assessment was completed u/s 143(3) of the Act and later it was rectified by a rectification order passed u/s 154 of the Act. 9. We notice that the Ld CIT(A) has considered the facts available in this case in detail and accordingly he has given his decision. For the sake of convenience, we extract below the relevant portion of his order:- "2.3 I have considered the facts of the case. The facts of the case have been explained in details in above paras. The appellant inter-alia earned profit on sale of investments in mutual fund and shares which were disclosed and offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the reopening was made on the basis of material already available on record, this amounts to reopening on the basis of change of opinion i.e. Reopening on the basis of material already considered by the AO at the time of framing the original assessment order. In the case of Indian Eastern Newspaper Society Vs CIT, 119 ITR 996(SC), it is held that "It is a settled position in law that where assessment sought to be reopened is before the expiry of 4 years from the end of relevant AY, then in such cases, power for reopening is very wide. However, even when such a power is very wide, yet such power would not justify a review of the assessment order already passed. " In the case under consideration, the AO has reopened the assessment on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act also. Hence, on both the occasions, the AO was very much aware of the fact that the assessee has declared the gains arising on sale of shares under the head Capital gains, that too both the Short term Capital Gains and Long term capital gains. A careful perusal of the reasons recorded for re-opening also shows that the assessing officer has entertained the reasons only from the facts already available on record. Under these set of facts, we are of the view that the Ld CIT(A) was justified in holding that the AO has re-opened the impugned assessment only on the basis of change of opinion and accordingly the Ld CIT(A) was justified in quashing the reopening of assessment. 11 In the result, the appeal filed by the revenue is dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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