The Income Tax Appellate Tribunal ‘A’ Bench, Chennai, has recently , in an appeal filed before it, held that reopening of assessment is not to be made on mere change of an opinion.
The aforesaid observation was made by the Tribunal when the Revenue had filed an appeal before it, against the order dated 05.09.2019., of the Commissioner of Income Tax (Appeals)-10, Chennai, in ITA No.88/CIT(A)-10/17-18.
The re-assessment being framed by the ACIT Non-Corporate Circle-22, Chennai, for the assessment year 2012-13 u/s.143(3) r.w.s. 147 vide his order dated 20.12.2017, the grounds of the appeal as were raised by the revenue read that the CIT(A)-10 has erred in deleting the addition made in the assessee’s case under the head capital gains u/s.2(47)(iv) of the Act by holding that reopening has been made merely on change of opinion, and further that the CIT-(A)10 ought to have appreciated the fact that the builder’s portion of land was brought to tax u/s.2(47)(iv) of the I.T. Act for arriving at the total income of the assessee.
“We note that the Revenue now could not controvert during the course of hearing as to how the AO has formed his opinion not to tax the builder’s portion of land , because the AO has gone into the details and reached a conclusion that the builder’s portion of land should not be treated as long term capital gain” – the bench while hearing the Revenue’s submissions commented
Relying upon the Supreme Court decisions in the cases of Kelvinator India Ltdand ITO vs. Techspan India (P) Ltd. and finally dismissing the Revenue’s appeal, it added –
“From the above, we note that in the present case before us, the AO has gone into the details of builder’s portion of land and formed an opinion as to what is to be taxed and whether the same is to be taxed in the hands of the assessee or not. When the AO once has formed opinion,then a further reopening made by the AO is bad in law.
Hence, we confirm the order of CIT(A) quashing the assessment framed on the basis of reopening , and dismiss the appeal of Revenue.”
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates.
