Income treated as “Capital gain” while framing original assessment after threadbare examination cannot be treated as “Business income” by re-opening the assessment even within four years:

Asst. was framed earlier u/s 143(3) wherein income arising on sale of certain landed properties was treated as “Capital Gain”. The asst. was sought to be re-opened within a period of four years from the end of relevant Asst. Year on the pretext that since assessee is engaged in the business of land development and purchase and sale of plots, the concerned landed properties are stock in trade and profit arising on sale of the same shall be “Business income”. The Hon’ble High Court observed that at the stage of original assessment, AO had thoroughly examined assessee’s return which consisted of only one source of income i.e. capital gain. It was held that any deviation from the view taken by AO at the time of framing original assessment shall amount to mere change of opinion and hence, the notice u/s 148 was quashed.

[ASHWAMEGH CO-OP. HOUS. SOC. LTD. VIBHAG-2 - SCA 12598, 12600 & 12614 of 2012 - GHC]