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TMI Blog2015 (12) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,68,872/- as against returned loss of Rs. 49,22,280/-. Assessment was thereafter reopened u/s 147 of the Income Tax Act 1961 ( in short "the Act") to bring to tax claim of finance charges by the assessee, to disallow interest claimed by assessee for diversion of interest bearing activities and loss claimed on sale of shares and debentures. Notice u/s. 148 was issued on 30.03.2007. In response to the notice issued, assessee filed a copy of return of income on 08.05.2007, declaring total loss of Rs. 49,22,275/-, the same as declared in the original return of income filed. The assessee also requested to disclose the reasons for reopening of the assessment. The A.O. issued notice u/s 142(1) of the Act on 11/10/2007 to the assessee calling for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of reopening of assessment will amounts to change of opinion, as has been declared and stated by the Hon'ble Supreme Court in the case of Kelvinator of India Ltd. 320 ITR 561 (SC). Further I find that the Hon'ble Supreme Court in the case of ACTI & Others vs. ICICI Securities Primary Dealership Ltd. has clearly held that "rejection of the objections of the assessee to the reopening of the assessment by the Assessing officer was clearly a change of opinion and the order reopening the assessment was not sustainable. In addition to this, my view also gets support from the decision of NYK Line (India) Ltd. vs. DCIT, wherein the Bombay High Court has held that " The power of the Assessing officer to reopen an assessment within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cannot be reopened on such grounds. Thus, in view of the aforesaid facts of the case, I am of the considered view that the A.O. was not justified in reopening the assessment in the instant case. Accordingly the A.O 's order is annulled." It is not in dispute that the original assessment was completed on 30.11.2004. Subsequently, the matter was taken up under section 147 of the Act. The order of the A.O, no where speaks about having a new material or any tangible material to reopen the case. The Learned CIT(A) has recorded a finding that the assessing officer has called for relevant details during the course of original assessment proceedings. Hence it is quite clear that the reopening was done on the basis of change of opinion. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for computation of capital gains is amount of full value of consideration received or accruing as a result of transfer of capital asset and expression 'full consideration' cannot be construed as having reference to market value of assets transferred but refers to price bargained for by parties and it cannot refer to adequacy of consideration - Held, yes - Whether where assesseecompanies transferred shares to a group company under an arrangement at cost for which they purchased those shares and there was no material to show that assessee had received more than what had been disclosed in books, difference between 'fair market value' and cost at which shares were transferred could not be brought to tax under head 'Capital gains' - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged by the revenue by establishing facts and circumstance from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is understatement of concealment of the consideration in respect of the transfer. Therefore, section 52(2) had no application to the present case and the ITO could have no reason to believe that any part of the income of the assessee had escaped assessment so as to justify the issue of a notice under section 148." 5. Now coming to the case in hand the assessee sold 7,99,800 shares to Rainbow Agri Industries at the face value at Rs. 1/-. The A.O. determined fair market value at Rs. 3.50/- without bringing any material on record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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