2015 (12) TMI 504 - AT - Income Tax

Validity of assessment order - CIT(A) held it as bad in law as so called other order was merely an untenable and concocted story which is non-cognizable and had no legal sanctity - Held that - if the alleged order bears same DCR No.151/380 on the subsequent demand notice, then it may safely be inferred that allegations made by the ld. AR are correct that the Assessing Officer erred in framing the second order of the same date which was prejudicial to the assessee in comparison to earlier order. We may point out that the conduct of the Assessing Officer was dignified and judicious and the CIT(A) rightly held that second order under appeal is bad in law. The CIT(A) was also quite balanced and justified in drawing attention of CIT, Meerut to this serious issue. We are unable to see any reason to interfere with the impugned order and we uphold the same on this issue. - Decided against revenue Valid service of notice under section 143(2) - Held that - When the Assessing Officer himself went wrong in holding valid service of notice and did not decide the legal objection of the assessee, the CIT(A) was quite balanced and justified in holding that the valid service of notice within time comes under serious doubt as the Assessing Officer has not brought out any fact on record to support valid service of notice on the assessee. Hence, we are unable to see any valid reason to interfere with the conclusion of the CIT(A) on this issue and we uphold the same. - Decided against revenue Income earned on sale and purchase transactions of shares - CIT(A) held as capital gain - Held that - CIT(A) rightly evaluated the conduct of the assessee as well as facts and circumstances of the case in the light of treatment given by the assessee regularly showing investments in shares at purchase value and taking them as investments. Furthermore, the assessee had not claimed the Securities Transaction Tax (SIT) and specially when the assessee could get the benefit of valuation loss or rebate u/s 88E of the Act, the Assessing Officer can not label the assessee as dealer in shares and thus income derived therefrom cannot be treated as business income. The dicta laid down by Hon ble High Court in the case of Jubilant (2011 (3) TMI 607 - DELHI HIGH COURT ) was followed and the CIT(A) granted relief to the assessee on justified and correct appreciation of fact and we are unable to see any valid reason to interfere with the same. - Decided against revenue

Summary

Issues involved:
1. Validity of assessment order and substitution of new order.
2. Admissibility of additional evidence under Rule 46A.
3. Validity of service of notice under section 143(2) of the Act.
4. Characterization of income earned from sale and purchase transactions of shares as capital gains.

Detailed Analysis:
1. The first issue revolved around the validity of the assessment order and the substitution of a new order. The CIT(A) concluded that the second order, which was framed on the same date as the earlier order, was prejudicial to the assessee. The Assessing Officer's conduct was questioned, leading to the conclusion that the second order was bad in law. The Tribunal upheld the CIT(A)'s decision, emphasizing the dignified and judicious conduct of the Assessing Officer and dismissing the revenue's grounds challenging the order.

2. The second issue dealt with the admissibility of additional evidence under Rule 46A. The Tribunal noted that the assessee did not file any application seeking admission of additional evidence under Rule 46A during the first appellate proceedings. The so-called earlier assessment order was considered part of the revenue record and not additional evidence. Consequently, the Tribunal dismissed the revenue's ground on this issue.

3. The third issue focused on the validity of the service of notice under section 143(2) of the Act. The CIT(A) raised doubts about the valid service of notice within the stipulated time frame, as the Assessing Officer failed to address the legal objection raised by the assessee. The Tribunal agreed with the CIT(A)'s conclusion, highlighting the absence of concrete evidence supporting the valid service of notice. Consequently, the Tribunal upheld the CIT(A)'s decision on this issue.

4. The final issue involved the characterization of income earned from sale and purchase transactions of shares as capital gains. The Assessing Officer treated the income as business income, citing the frequency and volume of transactions. However, the CIT(A) disagreed, considering the assessee's consistent treatment of shares as investments and the absence of certain business indicators. Relying on relevant judgments and legal principles, the CIT(A) concluded that the income should be assessed as capital gains. The Tribunal supported the CIT(A)'s decision, emphasizing the correct evaluation of facts and circumstances, and dismissed the revenue's appeal.

In conclusion, the Tribunal upheld the CIT(A)'s decisions on all issues, emphasizing the importance of proper assessment procedures, legal considerations, and factual evaluations in determining the tax implications of the transactions in question.