2013 (11) TMI 1692

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.... [CIT(A)] has erred in upholding the reopening of the appellant's assessment u/s.148/147 of the Income Tax Act. The reopening assessment is bad in law and should, therefore, be quashed. 2. On facts and in the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) [CIT(A)] has erred in upholding that the assessee is a trader in shares, thereby rejecting the assessee's claim that he is an investor in shares. 3. Without prejudice to above, on facts and in the circumstances of the case and in law, whether the Ld. Commissioner of Income Tax (Appeals) [CIT(A)] has erred in upholding the AO's treatment in adopting the value of opening stock at Rs. 12,12,024/-, which is the market value of the shares as....

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.... mentioned in the reasons recorded is rectifiable one under Section 154 of the Act. However, on pointing out by the Bench against the said proposition of the learned AR, he mentioned that on the ground of change of opinion, the notice issued under Section 148 should be bad in law. Further, he mentioned that there is a judgment of the Hon'ble Supreme Court in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd, reported in (2007) 291 ITR 500(SC), which is relevant for the proposition that no opinion is formed during the proceedings under Section 143(1) of the Act. The learned counsel relied heavily on the submissions made during the proceedings before the lower authorities. 6. On the other hand, learned DR for the Revenue relied on....

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....ower authorities. Narrating the departmental stand for the assessment year 2002-03 & 2003-04, the CIT(A) has taken a decision that for the present year also the claim of the assessee must be treated as business income and not the capital gains. Further, it is pointed out that the AO as well as the CIT(A) has disturbed the opening stock figures and took the value at Rs. 12,12,024/- as against the closing stock of Rs. 21,30,839/- as disclosed in books. As per the counsel of the assessee, the same is not in tune with the decision of the Mumbai Bench of the Tribunal in the case of Melmould Corporation v. CIT, reported in 202 ITR 789, which is relevant for the proposition, the opening figures should not be disturbed when method of valuation was ....