TMI Blog2017 (1) TMI 1722X X X X Extracts X X X X X X X X Extracts X X X X ..... cer had determined the loss of the assessee without verifying the profit and loss account filed by it. In a case where reopening is attempted after four years from the end of an assessment year, first proviso to Sec. 147 would clearly apply. Nothing has been brought on record by the Revenue to show that assessee had failed to disclose fully and truly all material facts necessary for the assessment. Further, hon ble Apex Court in the case of Kelvinator India Ltd [ 2010 (1) TMI 11 - SUPREME COURT] had held that in the absence of fresh tangible material, reopening could not be done where original assessment was completed u/s.143(3) of the Act. Reopening done for the impugned assessment year was bad in law. Ex-consequenti the assessment is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer this was a capital loss. Assessee thereupon requested the ld. Assessing Officer to treat the return originally filed as one filed in pursuance of such notice. Claim of the assessee was that it was trading in share market for past many years and hence loss in share trading was a business loss. Ld. Assessing Officer however noted that for assessment year 2005-2006, assessee had made profit of ₹ 43,37,282/- which was claimed by the assessee as long term capital gains. Thus as per ld. Assessing Officer for impugned assessment year loss of ₹ 26,51,684/- due to sale of shares was not a business loss but only capital loss. The assessment was completed after making a disallowance of ₹ 26,51,684/-. 3. Aggrieved, asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regarding the nature of loss due to share trading. Hence, according to him, reopening was not based on any change of opinion and therefore was valid. 6. I heard the rival submissions and perused the material on record. It is not disputed that alongwith original return of income, assessee had provided Audited balance sheet, profit and loss account and schedules. Profit and loss account placed at paper book page no.6 clearly mentions loss on sale of shares of ₹ 26,51,684/- as a specific item of expenditure. The loss claimed by the assessee in the return was ₹ 18,15,356/-. The loss was determined by the ld. Assessing Officer in the original assessment at ₹ 17,94,091/-. The only disallowance made was for non deduction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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