TMI Blog2013 (4) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, that during the relevant assessment year, the petitioner carried on the business, inter alia, of actual delivery based purchase and sale of shares and speculation business in shares. The petitioner suffered a loss of ₹ 11,49,39,400 in business of share dealing and a loss of ₹ 5,50,95,999 in speculation business. The petitioner earned short-term capital gain of ₹ 1,57,23,404 and long-term capital gain of ₹ 10,86,84,635 and dividend income of ₹ 9,26,000 during the previous year. 3. On October 22, 2001, the petitioner filed return under the Act for the said assessment year showing a total income of ₹ 94,68,640 comprising the said business loss, the said speculation loss, the said short-term capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Explanation to section 73 and directed respondent No. 3 not to treat the share trading loss of ₹ 11,11,77,739 as deemed speculation loss within the meaning of the Explanation to section 73 of the Act and the Assessing Officer was directed to frame the assessment in the light of the direction contained in the said order. Pursuant to the order under section 144A, respondent No. 3 by assessment order dated March 31, 2004, under section 143(3)/144A completed the assessment by passing an assessment order. However, after completion of the assessment proceedings, the petitioner received the impugned notice dated March 31, 2006, under section 148 of the Act for the said assessment year on the ground that the said respondent had reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 147. Moreover, such reopening was violative of the directions under section 144A, which has a binding effect. After notice under section 148 was served, the petitioner by a representation dated August 21, 2006, prayed for its cancellation. Thereafter, writ petition was moved on September 19, 2006, when direction was issued for filing of affidavits and an interim order was passed restraining the respondents from reopening the assessment. Further, the Assessing Officer was directed to pass a reasoned decision on the objection filed by the petitioner to the impugned notice. Consequently, the Assessing Officer by letter dated September 22, 2006, replied. 5. Mr. Murarka, learned advocate appearing on behalf of the petitioner, sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directions issued by the Additional Commissioner under section 144A. 8. In order to answer the question it is necessary to refer to the relevant portion of section 144A, which is as under : A Joint Commissioner may, on his own motion or on a reference being made to him by the Assessing Officer or on the application of an assessee, call for and examine the record of any proceeding in which an assessment is pending and, if he considers that, having regard to the nature of the case or the amount involved or for any other reason, it is necessary or expedient so to do, he may issue such directions as he thinks fit for the guidance of the Assessing Officer to enable him to complete the assessment and such directions shall be binding on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances can the Assessing Officer issue the notice under section 148 for reopening the assessment proceedings ? So far the facts are concerned it is evident from the records that there has been no change. Rather facts are similar. Therefore, as the Assessing Officer is trying to reopen and reappraise the assessment on the same set of facts, in my view, it is a mere change of opinion. Secondly, had the Department considered the order passed under section 144A prejudicial to the interests of the Revenue, it could have invoked the provisions contained in section 263, which it did not. Therefore, the order passed under section 144A, which has a binding effect on the Assessing Officer, became final and cannot be reopened by issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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