DCIT 7(3), MUMBAI V. ARVIND RAJKISHORE SHARMA, MUMBAI

ITA 7137/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3716 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 30-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: APURVA R SHAH
• Keywords: Reopening of assessment; Business income; Salary income; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI , , BEFORE SHRI RAJENDRA , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMB ER ITA NO. : 7 1 37 /MUM/20 1 2 (ASSESSMENT YEAR: 200 6 - 0 7 ) D CIT - 7 (3) , R. NO. 615, 6 TH FLOOR, AAYAKAR BHAVAN , MUMBAI - 400 02 0 VS ARVIND RAJKISHORE SHARMA , 11, OCEAN VIEW ANNEXE, 100, BHULABHA DESAI ROAD, MUMBAI - 400 0 26 .: P AN: A AG P S 5691 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA KUMAR RESPONDENT BY : SHRI APURVA R SHAH /DATE OF HEARING : 03 - 0 3 - 201 6 / DATE OF PRONOUNCEMENT : 03 - 03 - 201 6 ORDER : . . : PER AMIT SHUKLA , JM : THE AFORESAID APPEAL HA S BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 18 .0 9 .2012 , PASSED BY LD. CIT(A) - 1 3 M UMBAI, FOR THE QUANTU M OF ASSESSMENT PASSED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 200 6 - 0 7 . IN THE GROUNDS OF APPEAL, REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1 . T HE LD . CIT (A) HAS ERRED ON FACTS AND IN LAW IN EXTENDING THE SCOPE OF CHANG E OF OPINION TO A CASE WHERE NO OPINION WAS FORMED BY THE ASSESSING OFFICER AND THEREFORE PRESUMED DEEMED FORMATION OF OPINION. 2. THE L EARNE D CIT (A) HAS ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THIS IS A CASE WHERE NO OPINION WAS FORMED BY TH E ASSESSING OFFICER AND THEREFORE REOPENING WAS OUTSIDE THE SCOPE OF CHANGE OF OPINION. 3. THE L EARNE D CIT (A) HAS ERRED ON FACTS AND IN LAW IN NOT PROPERLY ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 2 INTERPRETING THE LAW ON THE SUBJECT AND HIS DECISION IS CONTRARY TO RATIO OF DELHI HIGH COURT DECI SION IN THE CASE OF CIT VS USHA INTERNATIONAL LTD (DELHI HIGH COURT FU BENCH). 4. THE L EARNE D CIT (A) HAS ERRED ON FACTS AND IN LAW IN NOT PROPERLY APPRECIATING THE FACTUAL AND LEGAL MATRIX AS CLEARLY BROUGHT OUT BY THE ASSESSING OFFICER IN REASONS RECOR DED FOR REOPENING THE ASSESSMENT. 5. THESE GROUNDS ARE INDEPENDENT OF EACH OTHER AND WITHOUT PREJUDICE TO EACH OTHER. 2. THE BRIEF FACTS ARE THAT, THE ASSESSEE IS AN INDIVIDUAL EMPLOYED WITH TLG INDIA P LTD AS CHAIRMAN AND CEO. THE ASSESSEES TAXABLE INCOME INCLUDES SALARY AND CAPITAL GAINS EARNED FROM INVESTMENTS. THE ORIGINAL RETURN OF INCOME WAS FILED UNDER SECTION 139(1) ON 31.07.2006 DECLARING TOTAL INCOME OF RS.2,00,21,970/ - . THE SAID RETURN WAS PROCESSED UNDER SECTION 143(3) ON 27.06.2007 ACCEPT ING THE RETURN INCOME. LATER ON, THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY BY ISSUANCE AND SERVICE OF NOTICE UNDER SECTION 143(2). AFTER SCRUTINIZING ALL THE DETAILS AND RA I S I N G VARIOUS QUERIES FROM TIME TO TIME, THE AO ACCEPTED THE RETURN INCOME VIDE ORDER DATED 30.12.2008 PASSED UNDER SECTION 143(3). AFTER HAVING COMPLETED THE ASSESSMENT IN THE AFORESAID MANNER, THE ASSESSEES CASE H AS BEEN REOPENED UNDER SECTION 147 , AFTER ISSUANCE OF NOTICE DATED 18.03.2011 UNDER SECTION 148 ON THE FOLLOWING REASON S RECORDED : - ORDER SHEET REASONS RECORDED BEFORE ISSUE OF NOTICE U/S.148 SHRI ARVIND RAJKISHORE SHARMA PAN NO. - AAGPS5691 F A.Y.2006 - 07 18.03.2011 IN THIS CASE, THE ASSESSMENT FOR A.Y.2006 - 07 WAS COMPLETED 143(3) OF THE I .T. ACT, 1961 VIDE ORDER DATED 3 0.1 2.2008, ASSESSING THE ME AT RS.2,00,21 ,970/ - AS AGAINST THE SAME RETURNED INCOME. ON PERUSAL OF THE ASSESSMENT RECORDS, IT IS NOTICED THAT THE ASSESSEE'S ME CONSISTS OF INCOME FROM SALARIES, INCOME FROM OTHER SOURCE & A N INI TIAL INCOME IN SHARE TRANSA CTIONS. FOR THE YEAR UNDER CONSIDERATION, IT SEEN THAT THE ASSESSEE HAS FETCHED THE INCOME TO THE TUNE OF 1,16,68,122/ - FROM SHARE TRANSACTIONS SPANNING THE ENTIRE PERIOD. THE IF ITS ON THE SHARE TRANSACTION HAS BEEN OFFERED FOR TAXATION UNDER THE HEAD - T ERM CAPITAL GAINS AND TAXED @10%. THE NECESSITY OF EXPLORING THESE SANCTION IN NATURE OF ADVENTURE AND BUSINESS FO R THE PURPOSE OF ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 3 EARNING IT AND TAXING IT UNDER THE HEAD 'BUSINESS INCOME' @30% HAS BEEN LEFT THE FOLLOWING CITATIONS ON THE ISSUE GIVE THE NE CESSARY DIRECTIONS : - HON. MADRAS HIGH COURT IN CIT VS. S.P. BALASUBRAMANIAM IN 250 ITR 0127. THE HON. ANDRA PRADESH HIGH COURT IN CIT VS. RAJA DHANRAJ GIRJI IN 079 ITR 0563. THE SUPREME COURT OF INDIA IN RAJA BAHADUR KAMAKHYA NARAIN SINGH VS. CIT IN 77 IT R 253. MADRAS HIGH COURT IN AMIRTHAM AMMAL VS. CIT 74 ITR 739. THE HON. BOMBAY HIGH COURT IN RAJPUTANA TEXTILE (AGENCIES) LTD, VS. CIT, 24 ITR 46. HON. ALLAHABAD HIGH COURT IN ITO VS. RANI RATNESH KUMARIB, 123 ITR 343. IT IS TO BE MENTIONED HERE THAT MERE ENTRIES IN THE BOOKS OF ACCOUNT OWING SOME SHARES AS STOCK - IN - TRADE AND SOME SHARES AS INVESTMENT ARE NOT CONCLUSIVE PROOF TO DECIDE THE REAL NATURE OF TRANSACTION WHETHER THE INCOME IS FROM BUSINESS OR FORM CAPITAL GAINS. IN THE FOLLOWING CASES IT HAS BEEN HELD THAT ENTRIES IN THE BOOKS OF ACCOUNTS ALONE ARE NOT CONCLUSIVE PROOF TO DECIDE NATURE OF INCOME TUTICORIN ALKALI CHEMICALS AND FERTILIZERS LTD VS CIT (SC) REPORTED IN 227 ITR 172. CHOWRINGHEE SALES BUREAU PVT LTD. 87 ITR 548 (SC). PUNJAB DIST ILLING INDUSTRIES LTD. 35 ITR 523 (SC). SUPREME COURTS CIT VS PROVINCIAL FARMERS (P) LTD. (CAL) IN 35 ITR 223. CIT VS. J D. ITALIA 141 ITR 953 (AP). CIT VS BAZPUR CO - OP SUGAR FACTORY LTD 172 ITR 330. CIRCULAR NO.4/2007 DATED 1 5.06.2007 ISSUED BY CBDT SUBSEQUENT TO SUPREME COURT DECISIONS IN THE CASES OF : - CIT (CENTRAL) CALCUTTA VS. ASSOCIATED INDUSTRIAL DEVELOPMENT COMPANY (P) LTD (82 ITR 586), CIT, BOMBAY VS . H. HOCK LARSEN (160 (TR 67) ALSO OFFER APPROPRIATE GUIDANCE AND DIRECTIONS ON THIS ISSUE. THEREFORE I HAVE REASON TO BELIEVE & I AM SATISFIED THAT THE INCOME OF THE ASSESSEE CHARGEABLE TO TAX, HAS ESCAPED ASSESSMENT FOR A.Y.2006 - 07. PROCEEDINGS U/S.147 OF THE ACT ARE THEREFORE INITIATED. ISSUE NOTICE U/S.1 48 OF THE ACT. ( XXX ) DY. COMMISSIONER OF INCOME TAX - 7(3), MUMBAI . ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 4 IN RESPONSE TO THE NOTICE UNDER SECTION 148, THE ASSESSEE FILED DETAILED SUBMISSIONS AND SUBMITTED THAT, HE HAS ALREADY EXPLAINED THIS ASPECT DURING COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS , AS TO WHY THE INCOME FROM S ALE OF SHARES IS TAXABLE AS CAPITAL GAIN AND NOT AS BUSINESS INCOME. THE ASSESSEE HAS ALSO RAISED THE OBJECTION FOR REOPENING THE CASE MERELY ON THE GROUND OF CHANGE OF OPINION AND IN SUPPORT RELIED UPON THE DECISION OF APEX COURT IN THE CASE OF CIT VS K E LVINATOR OF INDIA LIMITED , REPORTED IN [2010] 320 ITR 561. ON MERITS ALSO, THE ASSESSEE FILED H IS DETAILED SUBMISSIONS WHICH HAS BEEN INCORPORATED BY THE AO AT PAGE 4 OF THE ASSESSMENT ORDER. HOWEVER, THE AO WITHOUT ANY PROPER REASONING, HELD THAT THE INC OME SHOWN BY THE ASSESSEE UNDER THE HEAD ON ACCOUNT OF SALE OF SHARES IS TO BE TREATED AS BUSINESS INCOME INSTEAD OF SHORT - TERM - CAPITAL - GAIN. 3. THE LD. CIT(A), AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, HELD THAT, THE REOPENING OF ASSESSMENT ON THE AFORESAID REASONS IS BAD IN LAW AS THE ENTIRE REOPENING IS BASED ON CHANGE OF OPINION . 4. BEFORE US, THE LD. DR POINTED OUT THAT, THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS HAS NOT EXAMINED THIS ISSUE PROPERLY, THEREFORE, ON THE PERUSAL OF THE RE CORDS THE AO NOTICED THAT SUCH A HUGE SHORT - TERM - CAPITAL - GAIN SHOWN FORM SHARE TRANSACTION SHOULD HAVE BEEN ASSESSE D UNDER THE HEAD BUSINESS INCOME . THE AO HAS ALSO REFERRED TO VARIOUS DECISIONS IN HIS REASONS RECORDED WHICH SHOWS HIS REASONS TO BELIEV E . THEREFORE, THE REOPENING IS VALID AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 147 R.W.S. 148. 5. ON THE OTHER HAND, LD. COUNSEL POINTED OUT THAT, DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSEE VIDE LETTER DATED 21 ST NOVEMBE R, 2008, IN RESPONSE TO THE QUERY RAISED BY THE AO HAS SPECIFICALLY SUBMITTE D THAT SUCH AN INCOME CANNOT BE TAXED AS A BUSINESS INCOME. AFTER CONSIDERING THE REPLY, THE AO HAS ACCEPTED THE ASSESSEES STAND. HENCE, I T IS A CLEAR - CUT CASE OF CHANGE OF OPINI ON WHILE RECORDING THE REASONS TO ASSUME THE ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 5 JURISDICTION FOR REOPENING THE CASE. HE, THUS, STRONGLY RELIED UPON THE ORDER OF THE CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND ALSO PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. FRO M THE PERUSAL OF THE DOCUMENTS IN THE PAPER BOOK, WE FIND THAT, ASSESSEE IN REPLY TO QUERY RAISED BY THE AO VIDE LETTER DATED 21 ST NOVEMBER, 2008 HAD SUBMITTED AND STATED AS UNDER: - YOUR GOOD SELF HAS ASKED WHY CAPITAL GAIN ON SALE OF SHARES AND MUTUAL FU ND SHOULD NOT BE TREATED AS BUSINESS INCOME. IN THIS CONNECTION, WE POINT OUT THAT THE ASSESSEE IS WORKING FULL TIME WITH TLG (INDIA) PVT LTD AND HE HAS NO SPARE TIME TO DO ANY OTHER BUSINESS ACTIVITIES EXCEPT THE COMPANYS WORK. THE ASSESSEE HAS MADE INVE STMENT IN THE SHARES AND SCRUTINY MUTUAL FUND LARGELY THROUGH ASSET MANAGEMENT COMPANIES SUCH AS BIRLA GLOBAL AND KOTAK SECURITIES IN RESPECT OF THEIR INVESTMENT SCHEMES OPEN TO HNI INVESTORS AND THEY HAVE MANAGED THE FUNDS FOR HIM. THESE INVESTMENTS ARE M ADE FOR EARNING DIVIDEND INCOME AND THE ASSESSEE HAS GOT THE BENEFIT OF APPRECIATION IN VALUE OF SHARES AND SECURITIES. THEREFORE, LONG - TERM AND SHORT - TERM CAPITAL GAIN ARE PROPERLY RETURNED BY THE ASSESSEE IN HIS COMPUTATION OF INCOME AND CANNOT BE TREATE D AS HIS BUSINESS. THUS, THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS HAD SPECIFICALLY ENQUIRED FROM THE ASSESSEE, AS TO WHY THE CAPITAL GAIN ON SALE OF SHARES AND MUTUAL - FUND SHOULD NOT BE TREATED AS BUSINESS INCOME. AFTER EXAMINING THE ASSESSEES R EPLY AND MATERIAL PLACED BEFORE HIM, HE ACCEPTED THE ASSESSEES STAND THAT, THE SAID GAIN FROM TRANSACTION OF SALE OF SHARES AND MUTUAL FUNDS IS TO BE ASSESSED UNDER THE HEAD CAPITAL - GAIN AND NOT AS BUSINESS INCOME. THE AO WHILE RECORDING THE REASONS H A S NOT REFERRED TO ANY TANGIBLE MATERIAL COMING ON RECORD HAVING LIVE - LINK - NEXUS WITH THE INCOME CHARGEABLE TO TAX HA VING ESCAPED ASSESSMENT. FROM THE PERUSAL OF THE REASONS RECORDED , IT IS SEEN THAT THE AO HIMSELF HAS NOTED THAT, THE NECESSITY OF EXPLO RING THESE TRANSACTIONS IN THE NATURE OF ADVENTURE AND BUSINESS FOR THE PURPOSE OF EARNING PROFIT AND TAXING IT UNDER THE HEAD BUSINESS INCOME @ 30% HAS BEEN LEFT OUT . FROM THE ABOVE, IT IS QUITE EVIDENT THAT, HE WENT TO TAKE A DIFFERENT VIEW BY EXPLORING THE POSSIBILITY OF TAXING THE INCOME UNDER A DIFFERENT HEAD. THIS CANNOT BE HEL D TO BE IN THE REALM OF ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 6 REASON TO BELIEVE SO AS TO ACQUIRE A JURISDICTION FOR REOPENING THE COMPLETED ASSESSMENT UNDER SECTION 143(3) , WHICH HAS ATTAINED FINALITY. SUCH A REA SONS CLEARLY AMOUNTS TO CHANGE OF OPINION , WHICH IS NOT PERMISSIBLE IN LAW AS HELD BY HONBLE SUPREME COURT IN THE CASE OF KALIVANTOR OF INDIA ( SUPRA ). OTHERWISE ALSO, HERE IN THIS CASE THE AO IN THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS HAS SPEC IFICALLY RAISED A QUERY AND HAS APPLIED HIS MIND AND THEN GIVEN HIS CONCLUSION, THEREFORE, THE AO CANNOT TAKE A DIFFERENT VIEW WITHOUT ANY MATERIAL INFORMATION COMING ON RECORD TO SHOW THAT, THE EARLIER ORDER AND THE CONCLUSION DRAWN BY THE AO IS INCORRECT ON FACTS. THUS, THE FINDING OF THE CIT(A) WHICH FOR THE SAKE OF READY REFERENCE IS REPRODUCED BELOW: 3.0. I HAVE CONSIDERED THE FACTS OF THE CASE. IN THE RETURN OF INCOME, THE APPELLANT HAD SHOWN INCOME FROM SALARY AND ALSO THE CAPITAL GAINS. SUCH CAPITA L GAIN WERE EARNED BY THE APPELLANT ON SALE /PURCHASE OF SHARE TRANSACTION. SUCH SALE/PURCHASE OF SHARES WERE CARRIED OUT THROUGH PORTFOLIO MANAGEMENT WITH WHOM THE FUNDS WERE PLACED BY THE APPELLANT. THE APPELLANT'S RETURN OF INCOME WAS SELECTED FOR SCRUT INY. DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, THE AG ASKED THE APPELLANT VARIOUS QUESTIONS AND DETAILS. THE APPELLANT FILED SUBMISSIONS TO THE AG VIDE HIS LETTER DATED 21/11/08.VIDE PARA 2 OF THE SAID LETTER, THE APPELLANT EXPLAINED TO THE AG THAT PROVI SIONS OF SEC.94(7) WERE NOT APPLICABLE AND THE APPELLANT FILED DETAILS OF MUTUAL FUND SOLD, PURCHASE AND DATE OF ACQUISITION, SALES AND OTHER DETAILS. VIDE PARA 3 OF THE SAID LETTER, THE APPELLANT ALSO EXPLAINED TO THE AO THAT INVESTMENTS WERE MADE THROUGH PORTFOLIO MANAGEMENT ACCOUNT WITH KOTAK SECURITIES. IN RESPONSE TO QUERY RAISED BY THE AO REGARDING ASSESSMENT OF CAPITAL GAIN AS BUSINESS INCOME, THE APPELLANT VIDE POINT NO.7 OF THE SAID LETTER EXPLAINED TO THE AO AS TO WHY THE INCOME EARNED ON THE SALE /PURCHASE OF SHARES/MUTUAL FUNDS WAS REQUIRED TO BE ASSESSED AS CAPITAL GAIN ONLY. THE AO PASSED THE ASSESSMENT ORDER U/S.143(3) OF THE ACT IN WHICH THE SHORT TERM CAPITAL GAIN SHOWN BY THE ASSESSEE WERE ACCEPTED AS SHORT TERM CAPITAL GAIN. THUS, IT IS EV IDENT FROM THE RECORD THAT DURING THE ORIGINAL ASSESSMENT PROCEEDINGS THE AO HAD EXAMINED THE ISSUE OF ASSESSABILITY OF INCOME EARNED ON SALE/PURCHASE OF SHARES/MUTUAL FUNDS AS CAPITAL GAINS OR BUSINESS INCOME. THE AO HAS REOPENED THE ASSESSMENT ON THE GR OUND THAT 'NECESSITY OF EXPLORING THESE TRANSACTIONS IN NATURE OF ADVENTURE OF BUSINESS FOR THE PURPOSE OF EARNING PROFIT AND TAXING IT UNDER THE HEAD BUSINESS INCOME @ 30% HAS BEEN LEFT OUT'. THESE REASONS WERE NOT SUFFICIENT FOR REOPENING THE ASSESSMENT. AS PER PROVISIONS OF SEC. 147OF THE ACT, A COMPLETED ASSESSMENT CAN BE REOPENED IF THE AO HAS 'REASON TO BELIEVE' THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THUS, THERE SHOULD BE REASON AND ON THE BASIS OF SUCH REASONS A PRIMA - FACIE BELIEF ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 7 COUL D BE FORMED THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THERE SHOULD BE RATIONAL NEXUS BETWEEN THE REASON AND THE FORMATION OF BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THOUGH, THE SUFFICIENCY OF REASONS CANNOT BE EXAMINED AT T HAT STAGE, BUT THERE SHOULD BE AT LEAST REASON WHICH CAN LEAD TO FORMATION OF A PRIMA - FACIE BELIEF THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE REASONS SHOULD BE BONA FIDE AND RELEVANT BASED ON WHICH A REASONABLE PERSON COULD HAVE FORMED REQUI SITE BELIEF THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. IN THE CASE UNDER CONSIDERATION, THE REASON RECORDED BY THE AO COULD NOT HAVE LED TO FORMATION OF BELIEF THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE READING OF REASONS SHOWS TH AT THE COMPLETED ASSESSMENT WAS BEING REOPENED TO EXPLORE THE POSSIBILITY OF ASSESSING THE PROFIT ON SALE PURCHASE OF SHARES AS BUSINESS INCOME AS AGAINST SHORT TERM CAPITAL GAIN SHOWN BY THE APPELLANT. AS PER PROVISIONS OF SEC.147 AND THE DECISIONS OF COU RTS AND TRIBUNALS, EXPLORATION OF POSSIBILITY CANNOT BE A GROUND FOR REOPENING OF ASSESSMENT. THE ' REASONS RECORDED' DOES NOT SHOW THAT THE A.O FORMED A BELIEF THAT THE PROFITS ON SALE/PURCHASE OF SHARES/MUTUAL FUNDS WERE ASSESSABLE AS BUSINESS INCOME. THE A.O WANTED TO EXPLORE SUCH POSSIBILITY BY MAKING FURTHER ENQUIRIES. AS PER DECISIONS OF COURT AND TRIBUNALS, RE - OPENING CANNOT BE MADE FOR MAKING ENQUIRIES. THUS, REOPENING OF ASSESSMENT WAS MADE ON THE BASIS OF INAPPROPRIATE REASON. AS EXPLAINED IN ABOV E PARAS, THE REOPENING WAS MADE ONLY ON THE ISSUE OF ASSESSABILITY OF PROFIT ON SALE /PURCHASE OF SHARES UNDER THE HEAD 'BUSINESS INCOME' AS AGAINST CAPITAL GAIN SHOWN BY THE APPELLANT. AS EXPLAINED ABOVE, DURING ORIGINAL ASSESSMENT PROCEEDINGS THE AO HAS EXAMINED THIS ISSUE. DURING ORIGINAL ASSESSMENT PROCEEDINGS, THE APPELLANT HAS FILED EXPLANATION/ DETAILS ON THIS ISSUE . IN THE ORIGINAL ASSESSMENT ORDER THE AO HAS NOT MADE ANY ADVERSE REMARKS/ OBSERVATIONS ON THIS ISSUE WHICH AMOUNTS TO ACCEPTANCE BY TH E AO OF APPELLANT'S SUBMISSIONS REGARDING ASSESSMENT OF PROFIT ON SALE /PURCHASE OF SHARES AS CAPITAL GAIN. THUS, DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, THIS ISSUE HAS BEEN EXAMINED BY THE AO. THE COMPLETED ASSESSMENT HAS BEEN REOPENED BY THE AO ON T HIS ISSUE ONLY. AFTER COMPLETION OF ORIGINAL ASSESSMENT ORDER, NO NEW FACTS OR INFORMATION HAD COME ON RECORD TO THE AO. THUS, ON THE SAME SET OF FACTS , THE PRESENT AO HAS TAKEN A DIFFERENT VIEW WHICH AMOUNTS TO CHANGE OF OPINION. AS PER THE DECISIONS OF C OURTS AND TRIBUNAL INCLUDING THE SUPREME COURT'S DECISION IN THE CASE OF KELVINATOR OF INDIA LTD (SUPRA), REOPENING OF COMPLETED ASSESSMENT ON THE BASIS OF CHANGE OF OPINION IS NOT ALLOWED. SINCE THE CASE UNDER CONSIDERATION, COMPLETED ASSESSMENT HAD BEEN REOPENED ON THE BASIS OF CHANGE OF OPINION, THEREFORE REOPENING OF ASSESSMENT WAS BAD IN LAW AND THEREFORE IS QUASHED. IN THE RESULT, ASSESSMENT FRAMED ON THE BASIS OF SUCH INVALID AND IN APPROPRIATE REASONS IS ALSO QUASHED. IS AFFIRMED AND ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DISMISSED. ARVIND RAJKISHORE SHARMA ITA NO. 7137 /M U M /2012 8 7. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH , 2016 . SD/ - SD/ - ( ) ( ) ( RAJE NDRA ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 3 RD MARCH , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 1 3 , MUMBAI . 4 ) THE COMMISSIONER OF INCOME - 7 , MUMBAI . 5 ) , , / THE D.R. A B ENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS