2018 (3) TMI 1308

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of income for the A.Y 2008- 09 on 29.09.2008 admitting a total income of Rs. 1,50,16,771/- and long term capital gains of Rs. 1,43,61,215/-. The assessment order u/s 143(3) of the IT Act was passed on 28.07.2010 by disallowing the claim of exemption u/s 10B of the IT Act and the total income was determined at Rs. 3,91,35,857/-. Subsequently, the A.O noticed that the long term capital gains offered by the assessee should have been taxed as short term capital gains, since he was of the opinion that the income chargeable to tax has the escaped assessment within the meaning of the Sec. 147 of the IT Act, he issued a notice u/s 148 of the IT Act on 21.01.203 for the reason that under the provisions of Sec. 50 of the IT Act, capital gain on tran....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e ambit of Sec. 50B of the IT Act and therefore should be considered as such. The CIT(A) rejected the grounds against the validity of the reassessment proceedings, but accepted the alternate plea of the assessee that the transaction is a slump sale and should be considered u/s 50B of the IT Act. Against the relief granted by the CIT(A), the revenue is in appeal before us and the assessee also is in cross objection against the order of the CIT(A) upholding the validity of the reassessment proceedings. 4. In its appeal, the Revenue has raised the following the grounds of appeal: "1. The Ld. CIT(A) erred both in law and on facts. 2. The Ld. CIT(A) ought not have allowed the assessee's claim for considering alternative plea which was reje....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....red the same in the assessment proceedings u/s 143(3) of the IT Act and therefore the reopening the assessment for considering the same as short term capital gains, is on mere change of opinion. He submitted that on mere change of opinion the reassessment is not valid. 8. On the other hand, the Ld. DR, supported the order of the CIT(A) who has held that the change of opinion would require the formation of opinion by the A.O on the issue in the proceedings u/s 143(3) of the IT Act, and since the issue of the applicability of Sec. 50B was never before the A.O during the proceedings u/s 143(3) of the IT Act, there can never be a change of the opinion, and also that the A.O has not considered the applicability of Sec. 50 to the IT Act to the t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....evenue's appeal is concerned, we find that, on reopening of the assessment the entire issue was before the A.O and the assessee had made the alternate claim of applicability of Sec. 50B of the IT Act to the transaction as a slump sale and in support of said claim has filed the Form No. 3CEA. The requirement to file Form No. 3CEA along with the return of income is to substantiate the claim u/s 50B of the Act. In the original return of income, since the assessee has not made the claim, the assessee could not have filed the Form No. 3CEA along with the return of income. Its only during the reassessment proceedings, that the assessee had made an alternate claim and therefore, the CIT(A) has rightly directed the A.O to assess the transaction ari....