2019 (1) TMI 2078

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.... justified in not following the binding judgment of Jurisdictional High Court in the case of Export Credit Corporation of India Vs. Addl. CIT & Others, in WP No.502/2012, where the Court held that something tangible need not be new? (b) Whether, in the facts and circumstances of the case and in law, the ITAT failed to appreciate that fact of the case are distinguishable in as much as the reopening of the assessment has been made within 4 years? (c) Whether, in the facts and circumstances of the case and in law, ITAT failed to appreciate that reason to believe that income has escaped assessment on some tangible material is sufficient for reopening of assessment? (d) Whether, on the facts and in the circumstances of....

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..../w 147 of the Act on 31st December, 2011. In such order he made no disallowance under Section 14A of the Act. The income of Rs.91.28 lakhs was treated as assessee's business income and he also disallowed expenditure of Rs. 24,000/­ under Section 40(a)(ia) of the Act. 5. The assessee carried the matter in appeal. CIT (Appeals) first tested the validity of the notice of reopening. He held that the question of sale of shares leading to capital gain or business income was subjected to scrutiny assessment and that therefore, qua such issue, there was a change of opinion. He, however, did not agree with the assessee that the notice of reopening was otherwise bad in law. Since on other two grounds there was no scrutiny. On merits, he up....

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....ourt in case of CIT Vs. Kelvinator India Ltd. [320 ITR 561(SC)], concept of change of opinion would apply. In other words, if the grounds on which the notice of reopening of assessment is issued, was subjected to scrutiny assessment, in absence of any tangible material outside the case records coming within the possession of the Assessing Officer, reopening of assessment would not be permissible. The Tribunal has however, not gone along this line. It is undisputed that only the question of income arising out of sale of shares was examined by the Assessing Officer during the scrutiny assessment, out of the three grounds mentioned by him in the reasons recorded. In other words, the remaining two grounds were never subjected to scrutiny during....