TaxTMI 
TaxTMI 
2019 (6) TMI 1747
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....dividual and has filed his return of income for the Assessment Year 2011-12 on 04/06/2012. The Assessing Officer reopened the assessment u/s 147 of the Act and issued a notice u/s 148 of the Act on 30/08/2013. The assessee requested that the return filed by him originally on 04/06/2012 be treated as a return filed in response to the notice issued u/s 148 of the Act. Thereafter he sought copy of the reasons for reopening. On receipt of the copy of the reasons of reopening, the assessee filed is objections. The Assessing Officer passed an order u/s 143(3) r.w.s. 147 of the Act on 28/11/2014 determining the gross total income of the assessee at Rs. 10,38,660/-. The Assessing Officer disallowed the claim of Rs. 7,95,984/- made by the ....
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.... case the entire proceedings u/s 148 of the Act was at the dictate of the other officials and without independent application of mind or satisfaction of the Assessee. Hence the reopening was without Jurisdiction and the same was bad in law and the proceedings and the assessment order be quashed. 7. For that in the facts and circumstances of the case the proceedings u/s 148 of the Act was a merely on change of opinion and therefore without jurisdiction and the same was bad in law and the proceedings and the assessment order be quashed. 8. For that in the facts and circumstances of the case the Ld CIT(Appeals) erred in holding that loss on MCX transaction for Rs. 7,95,984/ - was wrongly set off with the income from othe....
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....ts accounts audited u/s 44AB of the Act. 4.1. It was further submitted that the transaction that are done on MCX were notified by the Board as transactions which are not to considered as speculative in nature vide Circular No. 46 of 2009 dt. 22/05/2009. Hence the reasons recorded is wrong and the reopening has to be quashed. For these propositions, he relied on the judgment of the Hon'ble Delhi High Court in the case of Mohanlal Champalal Jain vs. ITO reported in [2016] 102 taxmann.com 293 (Bombay). He further relied on the CBDT circular and submitted that the loss in question should be treated as speculation loss and hence the adjustment made by the Assessing Officer should be deleted. 5. The ld. D/R, on the other hand, submitte....
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....t, 1961. The assessee filed his return for the AY 2011-12 on 04-06-2012 vide Ack. No. 390875420040612 where he has shown under the head of salary income is NIL, under the head of house property income is NIL, under the head STCG (u/s 111A) Rs. 18,87,869/- and STCG others Rs. 31,691/- and under the head other source is Rs. 3,57,677/- and he has claimed deduction against loss & carry forward for setting off with the STCG. The assessee has not been shown any business income in his return during the FY 2010-11 relevant to the AY 2011-12. Hence it is reason to believe that the assessee has escaped of his business income. Therefore the case id reopened u/ s 147 of the I.T. Act, 1961." 8. The ld. CIT (A) states that the asse....
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.... vide letter dated 31.03.2014 which can be seen from the following extract: "As you stated that the assessee earned a loss of Rs. 795984 of the transaction with MCX during the FY 2010-11 relating to the AY 2011-12, but does not claim any business loss in your ITR for the AT 2011-12. Moreover, your MCX transaction during the period is Rs. 220.95 crore which is reflected in AIR and is much more than the amount prescribe u/ s 44AB of the Income Tax Act, 1961 for compulsory audit as the MCX transaction is treated as the business transaction as per section 43(5) proviso (d) of the Income Tax Act, 1961. .....You are requested to furnish your MCX transaction loss along with certified contract notes.." 9. The ld. CIT ....
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....ding with the assessment. 9.2. The Hon'ble Bombay High Court in the case of Mohanlal Champalal Jain vs. ITO reported in [2019] 102 taxmann.com 293 (Bombay) under similar circumstances has held as follows:- "IT : Where Assessing Officer issued a reopening notice on ground that assessee had made transactions of huge amount in national/multi commodity exchange but he had not filed his return of income and assessee filed an objection that he had earned no income out of trading in commodity exchange and he had actually suffered loss and, therefore, he had not filed return of income, since, Assessing Officer had not looked into objections raised by assessee and proceeded ahead, impugned reassessment notice was unjustified" 9.3. The....