2014 (5) TMI 36

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....decision in the case of Kelvinator of India Ltd (320 ITR 561) without appreciating the fact that there was no change of opinion in this case and there is only one opinion possible on available facts, that the assessee's claim of setting off long term capital loss of AY 2002-03, against the short term capital gain on sale of depreciable assets of AY 2004-05, is lawfully not allowable as per the provisions of the IT Act, 1961, 2. On the facts and circumstances of the case and in law, the CIT(A) has failed to appreciate the fact that reopening of the assessment was not done in view of the Revenue Audit Objection per se but in view of the clear position of law regarding the taxability of capital gain on sale of depreciable assets; 3. Without ....

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....iated re-assessment proceedings and issued notice u/s 148 of the Act on 28.3.2011 after recording following reasons: "On perusal of the records, it is observed that in the case of the assessee, according to section 70(3) of the IT Act, 1961, loss relating to long term capital assets was to be set off only against long term capital gain from any of the long term capital assets in the same assessment year. According to section 74(1)(b) of the IT Act effective from 2002-04 onwards, unabsorbed loss relating to long term capital gain and not against STCG. Further, it was observed, that capital loss pertaining to AY 2002-03 was set off against the STCG of AY-2004-05) as follows : Capital gain on sale of depreciable asset Rs.30,65,000/- Less :....

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....s barred by limitation in view of proviso to section 147 of the Act as the assessment proceedings has been initiated after expiry of four years from the end of the relevant assessment year. He submitted that the AO has relied on his own record and stated that there was failure on the part of the assessee in disclosing fully and truly all material which is not factually correct. 4. On perusal of the reasons recorded by AO (supra) and also the facts that in the original assessment proceedings, the very same issue has been considered by AO as well as by ld. CIT(A) and the Tribunal when the assessment was made u/s 143(3) of the Act. We agree with the ld. AR that the AO has initiated re-assessment proceedings on the basis of the same facts whic....