2015 (12) TMI 144

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....r consideration:- "(1) Whether on the facts and the circumstances of the case and in law, the Tribunal was justified in accepting the assessee's claim that purchase and sale of shares, mutual funds reflected in 1062 transactions were in the nature of investment inspite of the fact that the AO had held that the assessee was a trader in shares and not an investor and hence, profit on such trading activity was taxable as business income instead of capital gains as claimed by the assessee? (2) Whether on the facts and the circumstances of the case and in law the Tribunal was justified in setting aside the notice issued under Section 148 and subsequent reassessment under Section 147 as bad in law inspite of the fact that th....

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....short term capital gains". I therefore have reason to believe that income to the extent of differential tax amount has escaped assessment within the meaning of Section 147 of the I.T.Act. The assessment is therefore reopened u/s.147 of the I.T.Act." 4. The respondent contested the jurisdiction of the Assessing Officer to reopen the assessment essentially on the ground that the reopening notice was issued on account of mere change of opinion. This is on account of the fact that during the regular assessment proceeding leading to the Assessment Order dated 29 December 2008 under Section 143(3) of the Act this aspect had been enquired into and allowed. However, the Assessing Officer did not accept the respondent's contention an....

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....m capital gain". This itself indicated the fact that it was business income. 7. We find the aforesaid submission is not well founded as the Tribunal in the impugned order has recorded that the transactions of purchase and sale which is the basis of the reopening is factually not correct. The transactions of purchase and sale were of 62 scrips during the year. The sale and purchase of a scrip in large number when placed by the assessee on the electronic system of Stock Exchange appear broken in different transaction in view of multiple buyers and sellers of the same. Therefore, a single transaction of purchase or sale which may appear as many transactions when in fact it is not so. Be that as it may, so far as reopening of assessment is c....