TMI Blog2015 (12) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... t is concerned, the same can only be done on the satisfaction of the provisions of Section 147 of the Act. In the present facts, the issuing of reopening notice is a clear case of change of opinion on the part of the Assessing Officer as the order under Section 143(3) of the Act in the regular assessment proceedings had been passed on examination of the very issue now being raised in the reopening notice. As observed by the Supreme Court in Commissioner of Income Tax Vs. Kelvinator of India Ltd., (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) a power to reassess is not a power to review. Therefore, an assessment cannot be reopened on a mere change of opinion in the absence of any fresh tangible material. - Decided in favour of assessee. - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject Assessment Year, the Assessing Officer while passing order under Section 143(3) of the Act on 29 December 2008 accepted the claim of the petitioner under the head Long term capital gain and Short term capital gain arising out of sale and purchase of shares and securities. Thereafter, on 28 March 2011 the Assessing Officer issued a reopening notice and the reasons in support of the same as communicated to the respondent reads as under:- On perusal of assessment records it is noted that during the relevant previous year, the assessee had purchased and sold shares of around 63 companies within a period of 12 months with total sale consideration received of ₹ 377.45 crores and purchase value of ₹ 684.66 crores. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 29 December 2011 of the Assessing Officer. 5. The Tribunal by the impugned order accepted the respondent's contention and held the reopening notice dated 28 March 2011 is without jurisdiction. The impugned order records the fact that a detailed enquiry into the nature of the income declared as capital gains was done as is evident from the questionnaire dated 11 June 2008 issued to the respondent-assessee and the detailed response thereto by letter dated 18 June 2008 during the regular assessment proceedings under Section 143(3) of the Act leading to the order dated 29 December 2008. The impugned order also records the fact that similar transactions have, in the past and in subsequent Assessment Years, been accepted. Besides, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Officer as the order under Section 143(3) of the Act in the regular assessment proceedings had been passed on examination of the very issue now being raised in the reopening notice. As observed by the Supreme Court in Commissioner of Income Tax Vs. Kelvinator of India Ltd., (320 ITR 561) a power to reassess is not a power to review. Therefore, an assessment cannot be reopened on a mere change of opinion in the absence of any fresh tangible material. 8. In view of the above, the impugned order of the Tribunal in allowing the respondent's appeal has only followed the settled position of law that reopening of assessment on mere change of opinion in the absence of fresh tangible material, is without jurisdiction. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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