"H"    
      IN THE INCOME TAX APPELLATE TRIBUNAL "H" BENCH, MUMBAI

       BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER
              AND Dr. S.T.M. PAVALAN, JUDICIAL MEMBER
              ./I.T.A. No.4714/M/2012 (AY: 2006-2007)
ACIT-10(1),                       / Hetal Madhukant Gandhi,
                      th                61, Rosie Apartments, North
455, Aayakar Bhavan, 4 Floor,     Vs.
M.K. Marg, Mumbai-400 020.              Avenue, Santacruz (W),
                                                           Mumbai ­ 400 065.
   ./ PAN : ACKPG 0257 D
( /Appellant)                                    ..        ( / Respondent)


         / Appellant by                   :           Shri M. Rajan
        / Respondent by :                             Shri P.V. Lakhani


         / Date of Hearing
                                                      :    10.12.2013
        /Dat e of Pronouncement :                          10 .12.2013
                                        / O R D E R

PER D. KARUNAKARA RAO, AM:

       This appeal filed by the Revenue on 16.7.2012 is against the order of the CIT
(A)-21, Mumbai dated 4.4.2012 for the assessment year 2006-2007.

       In this appeal, Revenue raised the following grounds which read as under:

       "1.     On the facts and in the circumstances of the case and in law, the Ld CIT (A)
       erred in allowing the additional ground and holding that the assessment made on
       the basis of reopening u/s 147 / 148 is invalid.

       2.      On the facts and in the circumstances of the case and in law, the Ld CIT (A)
       erred in holding that the AO had no new material for forming an opinion that
       trading in shares was required to be treated as business income."






2.     At the outset, Shri P.V. Lakhani, Ld Counsel for the assessee mentioned that
the grounds raised in the appeal by the Revenue is against quashing of
reassessment proceedings u/s 147 / 148 of the Act on the fact that no new material
was available for forming a different opinion, which is necessary for such valid
reassessment proceedings. In this regard, Ld Counsel brought our attention to
certain contents of para 4.3 of the impugned order and mentioned that AO tried to
assess the profits on sale of certain shares as ,,business income against ,,capital
                                                   2


gains offered by the assessee. In this regard, Ld Counsel read out that the said
issue is the subject matter of examination and verification during the regular
assessment proceedings and the AO accepted the assessees claim and the profit
was found assessable under the head ,,short term capital gains. The present
reassessment proceedings is a product of ,,change of opinion and there was no
tangible material to work as a livewire for assuming the jurisdiction u/s 147 / 148 of
the Act.
3.     On the other hand, ld DR fairly relied on the order of the AO.
4.     We have heard both the parties on the limited issue of validity of the
reassessment raised in ground no.1 and 2 of the Revenues appeal. We have also
perused the order of the CIT (A) in general and the operational paragraph 4.3 of the
said order. Relevant finding of the CIT (A) in this regard is reproduced here under:
       "4.3.........In the original assessment order, after considering all these details, the AO
       accepted appellants claim that the profit earned on sale / purchase of shares
       was assessable under the head `short term capital gain'. In the facts and
       circumstances the reasons recorded by AO were not sufficient for reopening the
       assessment u/s 147 / 148 of the Act. Thus, the reopening was made on improper /
       incorrect reasons. Consequently, such improper / incorrect reasons could not
       have given valid jurisdiction to AO u/s 147 of the Act for reopening the
       assessment. Therefore, the reopening of assessment u/s 147 / 148 of the Act
       deserves to be held as invalid........"
5.     From the above, it is evident that the AO originally formed an opinion and
accepted the claim of the assessee. The AO reopened the said assessment in the
absence of any tangible material to take a different view. It is a settled proposition
of the law that reassessment proceedings based on the change of opinion and when
there is no tangible material is not sustainable. Therefore, we are of the opinion
that the order of the CIT (A) does not call for any interference. Accordingly, ground
nos. 1 and 2 raised by the Revenue are dismissed.






6.     In the result, appeal of the Revenue is dismissed.

       Order pronounced in the open court on 10th December, 2013.

       Sd/-                                                       Sd/-
(Dr. S.T.M. PAVALAN)                                     (D. KARUNAKARA RAO)
  / JUDICIAL MEMBER                                      / ACCOUNTANT MEMBER
 Mumbai;             Dated 10.12.2013
.../ OKK , Sr. PS
                              3


    /Copy of the Order forwarded to :
1.  / The Appellant
2.    / The Respondent.
3.    () / The CIT(A)-
4.     / CIT
5.    ,   ,   / DR,
     ITAT, Mumbai
6.     / Guard file.
                         //True Copy//

                                       / BY ORDER,
                                  /  (Dy./Asstt. Registrar)
                            ,  / ITAT, Mumbai