TMI Blog2017 (1) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer did apply his mind as evidenced by the query raised to the very issue which is now sought to be raised as the basis for reopening the notice and the Assessing Officer was satisfied with the response to the query during the regular assessment proceedings. In the above view, the view taken by the impugned order of Tribunal that the reopening notice is without jurisdiction as it is founded on a mere change of opinion is on facts covered by the decision of this Court in favour of the respondent assessee. - Income Tax Appeal No. 1287 of 2014 - - - Dated:- 6-1-2017 - M. S. Sanklecha And P. R. Bora, JJ. Mr. Suresh Kumar for the appellant Mr. Atul Jasani for the respondent ORDER P. C. 1. This Appeal under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order) reads as under : Perusal of the records revealed that you had received compensation of ₹ 4,59,72,000/from Atofina Catalyst India Ltd. For settlement of disputes in relative to the management and operation of affairs of company and claimed as long term capital gain and offered tax @ 20% after claiming exemption u/s 54EC of the I.T. Act. The said claim was accepted by the department in original assessment u/s 143(3) dt. 29.12.2007. However, the compensation treated as Long Term Capital Gain is not correct as the same is not covered u/s 45(1) of the I.T. Act. There was no transfer of capital asset or nor any extinguishment of any rights in capital assets. The compensation received has to be compute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be useful to reproduce the finding of the Tribunal on the above aspect as under : 9. We have heard both the parties on this legal issue and perused the orders of the Revenue Authorities as well as the written submissions and the paper book field before us. The said question no.40 is perused and find the same is as under : 40. Please file complete details of compensation for extinguishment of ₹ 4.59 crores. What were the rights so extinguished Further, it is seen that as per para 4 of notes on accounts a sum of ₹ 1320 lakhs was earned as capital gain on this extinguishment. However, in the computation only ₹ 459 lakhs has been offered for tax and ₹ 875 lakhs has been claimed exempt u/s 54EC. Ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that the amount received on the so called extinguishment of capital gains was in fact a business income on account of the agreement entered into by the respondent assessee and the same was not considered due to oversight during the regular assessment proceedings. In support, reliance is placed upon the decision of this Court in Export Credit Guarantee Corporation of India Vs. Commissioner of Income Tax, 350 ITR 651. (h) The first contention urged before us by the Revenue is identical to the contentions which was urged by the Revenue in the earlier decision of this Court in respect of the same respondent assessee reported as Aroni Commercials Ltd. Vs. Deputy Commissioner of IncomeTax and Anr., 362 ITR 403. This Court had in the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responded to by the assessee. This non consideration of the same in the assessment order is no evidence of the Assessing Officer not being satisfied with the issue raised. (i) The next contention on behalf of the Revenue on consideration of the issue due to oversight in the regular assessment proceedings cannot be said to be forming of opinion. In support, the decision of this Court in Export Credit Guarantee Corporation of India (supra) was relied upon, where the Court has held that there can be no change of opinion. If an Assessing Officer has ignored the relevant material in regular assessment proceedings in arriving at assessment. The aforesaid decision is completely distinguishable on facts. In the aforesaid case of Export Credit Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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