SHRI YOGESH KIRCHAND SHAH,,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-3(2),, AHMEDABAD

I.T.A. No.1168/Ahd/2015 Assessment Year: 2008-09 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [Coram: Pramod Kumar AM] I.T.A. No.1168/Ahd/2015 Assessment Year: 2008-09 Yogesh Kirchand Shah, .......…………...........Appellant 1182/1, Opp. Ghanchi-ni-pole, MG Haveli Road, Manekchowk, Ahmedabad – 380 001. [PAN : AEDPS 4653 L] Vs. Income tax Officer, Ward – 3(2), Ahmedabad. ............................Respondent Appearances by: Arti N. Shah for the appellant Santosh Karnani for the respondent Date of concluding the hearing: 20.11.2017 Date of pronouncing the order: 29.11.2017 O R D E R 1. By way of this appeal, the assessee appellant has challenged correctness of the order dated 2nd March, 2015 passed by the ld. CIT(A) in the matter of assessment under section 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the assessment year 2008-09. 2. In the first ground of appeal, the assessee has raised the following grievance: “1. The Learned Commissioner of Income Tax (Appeals)-10, Ahmedabad has erred in law and on facts of the case in confirming the legality of issue of notice u/s.147 of the I.T. Act by the Assessing Officer though the original assessment was carried out u/s.143(3) of the I.T. Act, 1961.”

I.T.A. No.1168/Ahd/2015 Assessment Year: 2008-09 Page 2 of 3 income. Subsequently, however, the assessment was reopened by issuance of notice under section 148 on 29.05.2012. The reasons for reopening the assessment were stated to be as follows :- “The assessee is engaged business of Trading in Shares and also income from LTCG and STCG on sale of shares. The assessee filed return of income on 29.09.2008 declaring Loss of Rs.2,78,1837-. And also shown STCG of Rs.42,79,066/- and exempt LTCG of 27,65,699/- on sale of shares. Further, on verification of form no.10DB it reviles that the assessee had done all types of share transaction as under. Rs. 1,84,14,493 (Actual delivery) 1. Sale of Shares Rs. 93,86,962 (Actual delivery) 2. Purchase of Shares 3. Sale of shares Rs. 11,94,583 (Without Actual delivery) 4. Sale of derivatives Rs. 1,84,14,493 (Without Actual delivery) 5. Purchase of shares Rs. 98,86,963 (Without Actual delivery) The assessee has shown LTCG and STCG on first two type of transaction as investment and in respect of other types of transaction the assessee has shown as his business income. Considering the volume and nature of transactions, the income from LTCG and STCG is to be treated as business income and it clearly indicate that the bifurcation of income has been done to reduce the tax liability. This has resulted into under assessment to the tune of Rs.70,44,765/-. In view of the above, I am satisfied that income chargeable to tax has escape assessment the above extent within the meaning of Explanation 2(c) to section 147 of the IT Act and it is a fit case for reopening the assessment. Issue notice u/s 148 of the IT Act.”

I.T.A. No.1168/Ahd/2015 Assessment Year: 2008-09 Page 3 of 3 Officer at the original assessment stage, has come to light now. In these circumstances, I am of the considered view that it was certainly not a fit case for reopening the assessment merely because the Assessing Officer has not written a detailed order analysing the stand of the assessee. I, therefore, quash the impugned reassessment proceedings.

Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad