TMI Blog2021 (10) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... ar case of change of opinion, which has been held to be bad in law in terms of decision of the Hon'ble Supreme Court in the case of Kelvinator India Pvt Ltd. We found that during the scrutiny assessment, the case was discussed with the assessee on four dates, prior to which, a questionare containing as many as 13 questions were put to the assessee with direction to file relevant documents and on scrutiny of those documents, the Assessing Officer called for further particulars which had also been furnished by the assessee on 04.06.2018 and therefore, it has to be presumed that the order has been passed by the Assessing Officer under Section 143(3) of the Act dated 17.09.2008 by forming an opinion and reopening the same on the same ground for the very same issue is a clear case of review. We are of the clear view that the reopening of the assessment is a clear case of change of opinion and what is the Assessing Officer purported to review the scrutiny assessment, which is impermissible under law. - Decided in favour of assessee. - W.A. Nos. 2452 and 2453 of 2021 And C.M.P. Nos. 15747 and 15750 of 2021 - - - Dated:- 28-9-2021 - Honourable Mr. Justice T.S.Sivagnanam And H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.07.2012 furnished the reasons for reopening the assessment, which read as hereunder :- The assessee company had purchased and sold the shares. The income derived has been treated as capital gain and paid tax @ 10%. However, it is seen that there were no investments. Therefore, the income of ₹ 5,05,59,650/- has to be treated as business income. The income has escaped the taxable rate of 30% but the assessee company paid the taxes on capital gain @ 10%. 4. The assessee submitted their objections through their Chartered Accountant vide letter dated 25.07.2012. The assessee had set out the details as to how the case was discussed by the Assessing Officer on as many as four days and the details which were furnished by the assessee and how the assessment should complete. On the reasons given for the reopening of the assessment, the assessee pointed out that the reasons do not attribute that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment and further, does not state how there has been a failure on the part of the assessee to disclose fully and truly all material facts necessary for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 31st March 2005, the assessee has kept the entire money in cash and bank balance and not as investment in any securities as the company is prohibited from any other investment till the NBFC registration is granted. 28. The assessee company was incorporated as NBFC with specific objects of investments in shares and securities. The assessee has started operations of investing in shares and securities only from the financial year 2005-06 after getting NBFC Registration from RBI on 18.05.2005. The Finance Act 2004 introduced new section 111A tax on short-term capital gain in certain cases. Where the total income of an assessee included any income chargeable under the head Capital Gains arising from the transfer of a short term capital asset, being an equity share in a company or a unit of an equity oriented fund and a) The transaction of sale of such equity share or unit is entered into on or after the date on which Chapter VII of the Finance (No.2) Act, 2004 comes into force, and b) Such transaction is chargeable to securities transaction tax under that chapter, c) The tax payable by the assessee on the total income shall be the aggregate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2014] 366 ITR 453 (Madras) . The assessee along with the other assessees preferred appeals before the Hon'ble Supreme Court and the Hon'ble Supreme Court granted an order of interim stay on 14.11.2014. However, one day prior to the same, the Assessing Officer issued reassessment order dated 13.11.2014, which was challenged by the petitioner in W.P.No.30980 of 2014, which is subsequent of the cases of the appellant. It is the submission of the Learned Senior Counsel for the appellant that technically there might not have been a necessity to challenge the reassessment order. But, nevertheless which according to the assessee the reassessment order was despatched much later to the date of the order of stay granted by the Hon'ble Supreme Court, dated 14.11.2014. But, however, since the reassessment was coupled with the demand notice, the assessee was constrained to challenge the same by way of a separate writ petition. The Hon'ble Supreme Court allowed the appeals filed by all the assessees including the assessee before us in a batch of cases in Jeans Knit Private Ltd Vs. Deputy Commissioner of Income Tax ors. reported in [2017] 390 ITR 0010 (SC) . The Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will show that there is no such allegation against the assessee. That apart, the reopening having been made beyond the period of four years, unless and until there is fresh tangible material available in the hands of the Assessing Officer and putforth to the assessee in the proper manner, reopening could not have been resolved. The decision of the Hon'ble Supreme Court in Kelvinator India Pvt Ltd. would clearly come to the aid and assistance of the assessee. In the absence of any allegation against the assessee of any non-disclosure, we have no hesitation to hold that the assessment is a clear case of change of opinion, which has been held to be bad in law in terms of decision of the Hon'ble Supreme Court in the case of Kelvinator India Pvt Ltd. Furthermore, we found that during the scrutiny assessment, the case was discussed with the assessee on four dates, prior to which, a questionare containing as many as 13 questions were put to the assessee with direction to file relevant documents and on scrutiny of those documents, the Assessing Officer called for further particulars which had also been furnished by the assessee on 04.06.2018 and therefore, it has to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
