TaxTMI 
TaxTMI 
2017 (1) TMI 816
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.... (i) Whether on the facts and circumstances of the case, the Tribunal was correct in law in treating the reopening of the case as bad in law by holding it to be a mere change of opinion without appreciating the fact that the notice u/s 148 of the Income Tax Act, 1961 was issued within four years from the end of the assessment year and due process of law was followed in this regard? (ii) Whether on the facts and circumstances of the case, the Tribunal was correct in law, in not adjudicating the issue of compensation claimed by the assessee as long term capital gains as against its treatment as business income by the Assessing Officer? 3. Regarding Question (i) : (a) During the subject assessment year, the respondent assessee....
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....as being without jurisdiction on account of it being issued on mere change of opinion. This was not accepted by the Assessing Officer and he proceeded to complete the assessment under Section 147 r/w Section 143(3) of the Act, by order dated 13th November, 2010. However, on merits of the claim, the Commissioner of Income Tax (Appeals) [CIT(A)] allowed the appeal, holding that compensation received was capital gains. (d) Being aggrieved, the respondent assessee carried the issue of reopening notice being without jurisdiction in appeal to the CIT(A). By order dated 18th November, 2011, the CIT(A) dismissed the assessee's appeal on the ground that there was no change of opinion as the nature of the compensation received, claimed as capi....
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....under : "As required by your goodselves, the explanation for treating compensation for Extinguishment of Rights as Long Term Capital Gain is as under" 9.3 Relevant contents of page 18 read as under : "The conditions at (c) has been clearly satisfied, as we have received Rs. 4.60 crores as consideration for termination of our rights." (f) On the basis of the above facts, the impugned order concludes that the very issue / basis of the reasons recorded in support of the reopening notice was considered during the regular assessment proceedings. It was only on the Assessing Officer being satisfied with the justification of the respondent assessee's claim that the Assessing Officer accepted it to be capital gains....
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.... while completing the assessment. It is not necessary that an assessment order should contain reference and / or discussion to disclose its satisfaction in respect of the query raised. If an Assessing Officer has to record the consideration bestowed by him on all issues raised by him during the assessment proceedings even where he is satisfied then it would be impossible for the Assessing Officer to complete all the assessments which are required to be scrutinised by him under Section 143(3)of the Act. Moreover, one must not forget that the manner in which an assessment order is to be drafted is the sole domain of the Assessing Officer and it is not open to an assessee to insist that the assessment order must record all the questions raised....
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.... in that case no query was raised with regard to the issue on which reopening was sought to be done. As opposed to the above, in the present case, query as reproduced hereinabove as raised touched upon all the facets of the amounts received on extinguishment of asset by the respondent assessee. Therefore, this is not a case where the Assessing Officer has ignored / overlooked by oversight the claim made by the assessee in its return of income while allowing it as in the case of Export Credit Guarantee Corporation of India (supra). This is a case where the Assessing Officer did apply his mind as evidenced by the query raised to the very issue which is now sought to be raised as the basis for reopening the notice and the Assessing Officer was....