Dhandayuthapani Foundry P Ltd., Coimbatore V. ACIT, Coimbatore

ITA 1695/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96403 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 22-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR U ANJANEYULU
• Assessee Lawyers: K RAGHU
• Keywords: Reopening of assessment; Capital asset; Difference of opinion; Revised return; Change of opinion
• Section: 143(3); 133A; 147; 148; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ! # , $ & BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1695/MDS/2015 ( / ASSESSMENT YEAR: 2008-09) M/S. DHANDAYUTHAPANI FOUNDRY P.LTD. 131/4B, VILANKURICHI ROAD, COIMBATORE-641 035. VS. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-I(2) COIMBATORE. PAN: AAACD6151G ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. K.RAGHU, C.A. /RESPONDENT BY : DR.U.ANJANEYULU, CIT DR /DATE OF HEARING : 12 TH NOVEMBER, 2015 /DATE OF PRONOUNCEMENT : 27 TH NOVEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, COIMBAT ORE DATED 21.05.2015 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN REJECTING THE CLAIM OF THE ASSESSE E THAT IMPUGNED PROCEEDINGS OF ASSESSING OFFICER WAS IN EXCESS OF HIS JURISDICTION U/S.147 IN THE F ACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW. 2. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD ON A READING OF THIRD PROVISO UNDER SECTION 147: 2 ITA NO.1695/MDS/2015 PROVIDED ALSO THAT ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOME OTHER THAN THE INCOME INVOLVING MATTERS WHICH ARE THE SUBJECT MATTER OF ANY APPEAL REFERRED OR REVISION WHICH IS CHARGEABLE TO TAX AND HAS ESCAPED ASSESSMENT. IT SQUARELY APPLIED TO THE CASE AND QUASHED THE ASSESSMENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW. 3. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE INCOME ACCRUING ON TRANSFER O F LONG TERM CAPITAL ASSET WAS THE VERY SUBJECT MATTER FOR CONSIDERATION IN HIS ORDER DATED 16.05.2012 AN D HAD BEEN GIVEN EFFECT BY ASSESSING OFFICER ON 6.7.2012 FOR THE ASSESSMENT YEAR 2008-09 HAVING REACHED FINALITY THE PROCEEDINGS U/S.147 INITIATED WITH REFERENCE TO THE VERY SAME LONG TERM CAPITAL ASSET WAS WITHOUT JURISDICTION IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW. 4. WITHOUT PREJUDICE TO THE ABOVE, THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE UPHELD THAT IT IS CLEARLY A CASE BASED ON CHANGE OF OPINION ON THE PART OF THE ASSESSING OFFICER FOR RECOMPUTING THE CAPITAL GAIN ON THE BAS IS OF STATEMENT AT THE TIME OF SURVEY U/S.133A AND HENCE THE REASSESSMENT IS UNSUSTAINABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW. 3. THE ASSESSEE IN ITS GROUNDS CHALLENGES THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN SUSTAINING THE REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE AC T. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITS THAT THE ISSUE IN APPEAL WAS ALREADY A SUBJECT MATTER OF APP EAL IN THE 3 ITA NO.1695/MDS/2015 ASSESSMENT YEAR 2006-07, THEREFORE THE ASSESSING OF FICER LOOSES JURISDICTION. 4. BRIEF FACTS ARE THAT ASSESSEE FILED ITS RETURN O F INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 31.03.2009 ADMIT TING INCOME OF ` 4,23,718/-. THE ASSESSEE COMPANY FILED A REVISED RETURN ON 30.9.2009 DECLARING THE CURRENT Y EAR LOSS OF RS.18,O1,OOO/-. THE RETURN OF INCOME WAS PROCESSED U/S 143(1) ACCEPTING THE INCOME RETURNED. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AS PER NORMS AND ASS ESSMENT UNDER SECTION 143(3) WAS COMPLETED ON 28.11.1010 ASSESSING LONG TERM CAPITAL GAIN (LTCG) OF ` L0,11,12,800/- ON A PROTECTIVE BASIS. THE LONG TERM CAPITAL GAIN AROSE IN THIS CASE BECAUSE OF THE JOINT DEVELO PMENT AGREEMENT DATED 28/12/2005 BETWEEN THE ASSESSEE AND M/S VR NACHIMUTHU (CBE), A FIRM. THE L TCG WAS ASSESSED ON SUBSTANTIVE BASIS IN THE A.Y. 2006- 07 BASED ON THE OBSERVATION THAT THE EFFECTIVE DATE OF TRANSFER OF THE LAND OF THE ASSESSEE IS THE DATE OF THE JOINT DEVELOPMENT A GREEMENT (JDA)I.E. 28/12/2005 AND' HENCE LTCG IS ASSESSABLE FOR AY' 2006-07, NOT 2008-09. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) VIDE ORDER DATED 16.5.2012 D IRECTED 4 ITA NO.1695/MDS/2015 THE ASSESSING OFFICER TO ASSESS THE LTCG ON SUBSTAN TIVE BASIS IN THE A.Y. 2008-09 OBSERVING THAT MUNICIPAL SANCTION IS THE PRIMARY CRITERION IN THIS ISSUE, WHICH WAS O BTAINED ONLY ON 19/10/2007. THE TRIBUNAL CONFIRMED THE ORDER OF THE CIT(A). APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT FOR THE A.Y. 2006-07 AGAINST THE ORDER OF THE TRIBUNAL TREA TING THE A.Y. 2008-09 AS THE SUBSTANTIVE YEAR FOR COMPUTATION OF LTCG FOR. HOWEVER, NO APPEAL WAS PREFERRED AGAINST THE DECISION OF THE CIT(A) BY THE DEPARTMENT FOR THE ASSESSMENT YEAR 2008-09, IT BEING A PROTECTIVE ASSESSMENT AND APPEAL WAS ALREADY FILED AGAINST THE TRIBUNALS DECISION FOR AY 2006-07. HENCE, FOR THIS PURPOSE, LONG TERM CAPITAL GAIN ON SALE OF LAND EMANATED DURING T HE FY 2007-08 UPON OBTAINING MUNICIPAL SANCTION FOR THIS JOINT VENTURE PROJECT AND THUS, THIS ASSESSMENT FOR AY 2008-09 IS MADE SUBSTANTIVELY. 5. A SURVEY UNDER SECTION 133A OF THE IT ACT, 1961 WA S CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 29.10 .2012. DURING THE COURSE OF SURVEY, THE ASSESSEE ADMITTED THE SALE CONSIDERATION AT A HIGHER VALUE OF RS. 1200 PER SQU ARE FEET 5 ITA NO.1695/MDS/2015 AMOUNTING TO RS.12,34,04,230/-. THEREFORE, THE LTCG WAS ARRIVED AT THE TIME OF SURVEY BASED ON THE GUIDELIN E VALUE OF THE LAND DEEMED TO HAVE BEEN TRANSFERRED TO THE DEV ELOPER. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED U/S 147 O F THE IT ACT, 1961 AND A NOTICE U/S 148 OF THE IT ACT, 19 61 WAS ISSUED ON 31.12.2012, WHICH WAS SERVED ON 5/1/2013. IN THE LETTER DT. 12/11/2012, SRI VIKRAM DAMODARAN, DIRECT OR OF THE ASSESSEE COMPANY STATES THAT IT WAS AGREED THAT AT THE TIME OF SURVEY THE CAPITAL GAINS ADMITTED FOR AY 2008-09 WOULD BE REVISED UPWARDS, AND THAT A REVISED RETURN WOULD BE FILED, AS DIRECTED BY THE JT. COMMISSIONER OF INCOME TAX. ACC ORDINGLY, AFTER THE SURVEY, THE ASSESSEE FILED A RETURN IN RE SPONSE TO THE NOTICE UNDER SECTION 148 FOR THE A Y 2008-09 ON 31.12.2012 ADOPTING THE RATE OF ` 1200/- PER SQ.FT AND RETURNING INCOME OF ` 12,34,04,230/-. 6. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE SUB JECT MATTER OF APPEAL IN THE ASSESSMENT YEAR 2006-07 WAS THE YEAR OF TAXABILITY. HE SUBMITS THAT COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE CAPITAL GAINS SHOULD BE TAXED IN THE YEAR 2008-09 AND NOT IN THE ASSESSMENT YEAR 200 6-07. 6 ITA NO.1695/MDS/2015 HE SUBMITS THAT MEANWHILE THERE WAS A SURVEY IN THE PREMISES OF THE ASSESSEE AND IN THE COURSE OF SURVE Y, THE ASSESSEE ADMITTED THAT GUIDELINE VALUE OF THE LAND DEEMED TO HAVE BEEN TRANSFERRED TO THE DEVELOPER SHOULD BE AD OPTED AT ` 1200/- PER SQ.FT. FOR THE PURPOSE OF COMPUTING CAPI TAL GAINS. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT ASSESSEE H IMSELF HAS ADMITTED THAT SALE CONSIDERATION AT HIGHER VALU E OF ` 1200/- PER SQ.FT AMOUNTING TO ` 12.34 CRORES IN THE RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. DEPA RTMENTAL REPRESENTATIVE SUBMITS THAT THERE IS CHANGE OF OPIN ION FOR REOPENING OF ASSESSMENT AND REOPENING OF ASSESSMEN T WAS MADE ONLY IN VIEW OF THE DECISION OF COMMISSIONER I N HOLDING THAT CAPITAL GAINS SHOULD BE ASSESSED SUBSTANTIALLY IN THE ASSESSMENT YEAR 2008-09 AND IN VIEW OF THE SURVEY W HEREIN THE ASSESSEE HIMSELF ACCEPTED THAT GUIDELINE VALUE SHOULD BE ADOPTED AT ` 1200/- PER SQ.FT BY ACCEPTING THE SAME THE RETURN WAS FILED. 7. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES AND THE SUBMISSIONS MADE THEREIN. COMMISSIONER OF I NCOME TAX (APPEALS) HAS ELABORATELY CONSIDERED THE ISSUE WHETHER 7 ITA NO.1695/MDS/2015 THE REOPENING OF ASSESSMENT IS VALID OR NOT IN THE ORDER WITH REFERENCE TO THE CONTENTIONS OF THE ASSESSEE AND TH E ASSESSING OFFICER AND HELD THAT REOPENING OF ASSESS MENT IS VALID. WHILE HOLDING SO, COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- 5. I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AND ALSO THE ORDER OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER IN HIS ORDER HAS STATED AT PARA 3 'A SURVEY U/S 133A OF THE IT ACT 1961 WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 29.10.2012. DURING THE COURSE OF SURVEY. THE ASSESSEE ADMITTED THE SALE CONSIDERATION AT A H IGHER VALUE OF RS.1200/- PER SQUARE FEET AMOUNTING TO RS. 12,34, 04,230/-. THIS WAS BASED ON THE GUIDELINE VALUE OF THE LAND DEEMED TO HAVE BEEN TRANSFERRED TO THE DEVELOPER. SUBSEQUENTLY THE ASSESSMENT WAS RE-OPENED U/S 147 OF THE IT ACT 1961 AND A NOTICE U/S 148 OF THE IT ACT,1961 WAS ISSUED ON 31.12.2012. ACCORDINGLY. AFTER THE SU RVEY, THE ASSESSEE FILED A RETURN IN RESPONSE TO THE NOTICE U NDER SECTION 148 FOR THE A Y 2008-09 ON 31.12.2012 ADOPTING THE RATE OF RS.1200/- PER SQ.FT. AND RETURNING INCOME O F RS.12,34,04,230/-. THE AUTHORIZED REPRESENTATIVE SU BMITTED THAT THE ASSESSING OFFICER EXCEEDED HIS JURISDICTIO N IN RE- OPENING THE ASSESSMENT U/S 147 OF THE IT ACT, 1961 BY VIRTUE OF THE 3 RD PROVISO TO SECTION 147 OF THE INCOME TAX ACT, 1961. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER WHILE DISCUSSING THE FACTS OF THE CASE STATED THAT THE CA SE WAS ORIGINALLY SELECTED FOR SCRUTINY U/S 143(3) WHICH WAS COMPLETED ON 28.12.2010 ASSESSING THE LONG TERM CAP ITAL GAINS OF RS.10,L1,12,800/- ON A PROTECTIVE BASIS. T HE LONG TERM CAPITAL GAINS AROSE IN THIS CASE BECAUSE OF TH E JOINT DEVELOPMENT AGREEMENT DATED 28.12.2005 BETWEEN THE ASSESSEE AND MIS. V.R. NACHIMUTHU (CBE) - A FIRM. THE LONG TERM CAPITAL GAINS WAS ASSESSED ON SUBSTANTIVE BASIS IN THE ASST. YEAR 2006-07 BASED ON THE OBSERVATION THA T THE EFFECTIVE DATE OF TRANSFER OF THE LAND OF THE ASSES SEE IS THE DATE OF JOINT DEVELOPMENT AGREEMENT I.E. 28.12.2005 AND HENCE LONG TERM CAPITAL GAINS IS ASSESSABLE FOR ASS T. YEAR 2006-07, NOT 2008-09. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) AND THE CIT(A) VIDE HIS ORDER DAT ED 16.05.2012 IN APPEAL NO.292/10-11 DIRECTED THE ASSE SSING 8 ITA NO.1695/MDS/2015 OFFICER TO ASSESS THE LONG TERM CAPITAL GAINS ON SUBSTANTIVE BASIS IN THE ASST. YEAR 2008-09 OBSERVI NG THAT' MUNICIPAL SANCTION IS THE PRIMARY CRITERIA IN THIS ISSUE WHICH WAS OBTAINED ONLY ON 19.10.2007. THE HON'BLE !TAT CONFIRMED THE ORDER OF THE CIT(A). APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT FOR THE ASST. YEAR 2006 - 07 AGAINST THE ORDER OF THE HON'BLE !TAT TREATING T HE ASST. YEAR 2008-09 AS THE SUBSTANTIVE YEAR FOR COMPUTATIO N OF LONG TERM CAPITAL GAINS. HOWEVER, NO APPEAL WAS PRE FERRED AGAINST THE DECISION OF THE CIT(A) BY THE DEPARTMEN T FOR THE ASST. YEAR 2008-09 AND APPEAL WAS FILED AGAINST HON'BLE !TAT DECISION FOR THE ASST. YEAR 2006-07. HENCE FOR THIS PURPOSE LONG TERM CAPITAL GAINS ON SALE OF LAND WAS MADE SUBSTANTIVELY FOR THE ASST. YEAR 2008-09, WITHOUT P REJUDICE TO THE OUTCOME OF THE APPEAL FILED BY THE DEPARTMENT B EFORE THE HON'BLE HIGH COURT OF MADRAS IN THIS CASE FOR THE A SST. YEAR 2006-07. 6. THE AUTHORIZED REPRESENTATIVE DURING THE COURSE OF APPELLATE PROCEEDINGS SUBMITTED THAT THE REVISION O F INCOME DOES NOT FALL WITHIN THE SCOPE OF SECTION 147 OF TH E INCOME TAX ACT, 1961 AS IT IS A REVISION OF THE ORDER OF T HE C!T(A), ON THE MERGER OF THE ASSESSMENT ORDER. THE SUBJECT MAT TER OF APPEAL IS THE INCLUSION OF THE CAPITAL GAINS ARISIN G TO THE APPELLANT, IN RESPECT OF VACANT LAND OF ABOUT 4.20 ACRES, GIVEN FOR DEVELOPMENT FOR RESIDENTIAL COMPLEX, IN T ERMS OF THE JOINT DEVELOPMENT AGREEMENT DATED 28.12.2005 EN TERED INTO WITH M/S. V.R. NACHIMUTHU (CBE), A FIRM. THE A PPELLANT ADMITTED IN, THE REGULAR RETURN FILED, LONG TERM CA PITAL GAINS ARISING UNDER THE JDA FOR THE ASST. YEAR 2008-09 AT RS.10,L1,12,800/-. UNDER THE JDA, THE APPELLANT WAS ENTITLED TO 35% OF THE BUILT-UP AREA AND THE DEVELOPER WAS E NTITLED TO 65% OF THE BUILT-UP AREA, TOGETHER WITH THE PROPORT IONATE UNDIVIDED INTEREST IN THE LAND. THE APPELLANT HAD R ECEIVED AN ADVANCE OF RS.L,74,00,000/- BUT, AS PER THE JDA, IN STEAD OF REFUNDING THE AMOUNT, A BUILT-UP AREA OF 12,500 SQ. FT. WAS TO BE APPROPRIATED FROM OUT OF THE OWNER'S SHARE. ACCO RDINGLY, THE ADVANCE OF RS.L,74,00,000/- WAS TREATED AS PART OF SALE CONSIDERATION RECEIVED ON THE DATE OF JDA ON 28.12. 2005, FOR THE PURPOSE OF COMPUTING THE CAPITAL GAINS AT RS.L0,11,12,800/-. IN THE REGULAR ASSESSMENT, THE A SSESSING OFFICER MADE A PROTECTIVE ASSESSMENT FOR THE ASST. YEAR 2008-09 AND BY AN ORDER U/S 143(3) R.W.S. 147 MADE A SUBSTANTIVE ASSESSMENT ON 'THE SAME AMOUNT, AS INCO ME, FOR THE ASST. YEAR 2006-07. 9 ITA NO.1695/MDS/2015 7. ON APPEAL AGAINST THE ORDERS FOR THESE TWO ASSESSME NT YEARS, THE CIT(A)-1, COIMBATORE, ALLOWED THE APPEAL FOR THE ASST. YEAR 2006-07, VIDE HIS ORDER DATED 16.05.2012 IN APPEAL NO.164/11-12, FOLLOWING HIS DECISION THAT TH E TRANSFER HAD TAKEN PLACE DURING THE PREVIOUS YEAR RELEVANT T O THE ASST. YEAR 2008-09 AND THEREFORE, IT HAS TO BE ASSE SSED ON A SUBSTANTIVE BASIS IN THE ASSESSMENT FOR THE ASST. Y EAR 2008- 09. NO APPEAL WAS FILED BY THE REVENUE AGAINST THE APPELLATE ORDER FOR THE ASST. YEAR 2008-09 AND THE SAME HAS REACHED FINALITY. 8. IN THE ABOVE PREVAILING STATE OF AFFAIRS, BASED ON THE SURVEY U/S 133A, CONDUCTED ON 29.10.2012, THE ASSES SING OFFICER FORMED HIS OPINION THAT THE LONG TERM CAPIT AL GAINS AS WAS ARRIVED AT THE TIME OF SURVEY, BASED ON THE GUIDELINE VALUE OF THE RAND DEEMED TO HAVE BEEN TRANSFERRED T O THE DEVELOPER WAS TO BE TAKEN, AT A HIGHER VALUE OF RS. 1200/- PER SQ.FT. AND THE REVISED CAPITAL GAINS WOULD BE RS.12,34,04,230/-. THE REVISION IN THE LONG TERM CA PITAL GAINS AS PER THE ASSESSMENT ORDER WAS BASED ON THE GUIDELINE VALUE OF THE LAND DEEMED TO HAVE BEEN TRA NSFERRED TO THE DEVELOPER WHICH WAS BROUGHT OUT IN THE COURS E OF REVISION PROCEEDINGS U/S 133A OF THE INCOME TAX ACT , 1961. THE APPELLANT RELIED ON THE DECISION OF THE GUJRAT HIGH COURT IN THE CASE OF NATIONAL DAIRY DEVELOPMENT BOARD VS DCIT REPORTED IN [2011J CTR (GUJ) 302. THE ARGUMENT OF T HE LEARNED AUTHORIZED REPRESENTATIVE WAS THAT THE 3 RD PROVISO TO SECTION 147 OF THE INCOME TAX ACT, 1961 IS APPLI CABLE TO THE FACTS OF THE CASE AND HENCE ASSESSING OFFICER H AS NO JURISDICTION TO ISSUE NOTICE U/S 147. THE LEARNED A UTHORIZED REPRESENTATIVE ALSO RELIED ON THE DECISION OF THE M ADRAS HIGH COURT IN THE CASE OF CIT, CHENNAI VS FLOTHEM ENGINEERS (P) LTD. REPORTED IN [2014] TAXMAN 255. IN THIS JUD GMENT THE HON'BLE HIGH COURT HAS STATED 'A READING OF THE ORDER REVISING THE ASSESSMENT BY THE ASSESSING OFFICER ON 30.11.2009, WHICH WAS SUBJECT MATTER OF APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND INCOME TAX APPELLATE TRIBUNAL SHOW THAT IT SOUGHT TO REVISE THE FIRST ORDER PASSED ON 22.09.2003, WHICH GOT MERGED WITH THE ORDER OF THE TRIBUNAL IN ITA NO.842/MDS/200S DATED 22.06,2007, WHICH HAD ATTAINED FINALITY. THUS, IF THE REVENUE I S QUESTIONING THE QUANTUM OF RELIEF GRANTED TO THE ASSESSEE, THE ORDER AVAILABLE FOR REVISION WOULD BE THE ORDER DATED 18.05.2005. WHEN THIS IS NOT SUBJECTED TO A NY REVISION UNDER SECTION 147 OF THE ACT, WE FAIL TO UNDERSTAND HOW REVENUE WOULD BE 10 ITA NO.1695/MDS/2015 JUSTIFIED IN SUSTAINING ITS PLEA ON ITS JURISDICTIO N TO REVISE THE ORDER UNDER SECTION 147 OF THE ACT. ON THIS SALE GROUND, WE DISMISS THE TAX CASE (APPEAL) FILED BY THE REVENUE'. ACCORDING TO THE LEARNED AUTHORIZED REPRESENTATIVE, THE ASSESSING OFFICER IS QUESTIONIN G THE ORDER OF THE CIT(A) DATED 16.05.2012 FOR THE ASST. YEAR 2008-09 IN THE MATTER OF QUANTUM OF LONG TERM CAPIT AL GAINS. I THIS SPECIFIC ISSUE, I DIFFER WITH THE LEA RNED AUTHORIZED REPRESENTATIVE. THE ASSESSING OFFICER HA S ISSUED NOTICE U/S 147 AFTER HAVING CREDIBLE INFORMA TION ON RECORD DURING THE COURSE OF SURVEY REGARDING THE QUANTUM OF LONG TERM CAPITAL GAINS. RECALLING THE FACTS, THE O RDER OF THE CIT(A) FOR THE ASST. YEAR 2008-09 WAS NOT REGAR DING THE QUANTUM OF LONG TERM CAPITAL GAINS, BUT WAS REGARDI NG THE ASST. YEAR IN WHICH THE LONG TERM CAPITAL GAINS IS TO BE BROUGHT TO TAX. HENCE, IT CANNOT BE HELD AS THE REV IEW ON THE BASIS OF CHANGE OF OPINION. THE ISSUE IN THE APPEAL FOR THE ASST. YEAR 2008-09 AND ALSO FOR THE ASST. YEAR 2006 - 07 WAS REGARDING THE YEAR IN WHICH THE LONG TERM CA PITAL GAINS WAS TO BE BROUGHT TO TAX. THE ISSUE IN THE AP PEAL WAS NEVER REGARDING THE QUANTUM OF LONG TERM CAPITAL GA INS. HENCE THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRESENTATIVE IN THIS REGARD DO NOT SUPPORT THE CA SE OF THE APPELLANT THAT THE ASSESSING OFFICER HAS NO JURISDICTION U/S 147 OF THE INCOME TAX ACT, 1961. THERE IS NO CHANGE OF OPINION CONSIDERING THE FACTS OF TH E CASE. HENCE THE DECISION RELIED ON BY THE AUTHORIZED REPRESENTATIVE ARE NOT RELEVANT TO THE FACTS OF THE CASE. THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRESENTATIV E REGARDING CHANGE OF OPINION ARE REJECTED AND THE 14 8 PROCEEDINGS ARE UPHELD. 8. ON GOING THROUGH THE ORDER OF THE COMMISSIONER O F INCOME TAX (APPEALS) WE DO NOT FIND ANY VALID REASO N TO INTERFERE WITH THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT REOPENING OF ASSESSMENT I S VALID AND THERE IS NO CHANGE OF OPINION FOR REOPENING OF ASSESSMENT. NONE OF THESE FINDINGS HAVE BEEN RE BUTTED BY THE COUNSEL FOR THE ASSESSEE. THUS, WE SUSTAIN T HE ORDER 11 ITA NO.1695/MDS/2015 OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND RE JECT THE GROUNDS RAISED BY THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 27 TH NOVEMBER, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2.RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .