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TMI Blog2011 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... r applied the proviso to Section 112 of the Act - Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly reopened - Decided in favour of assessee. - 2023 of 2010 - - - Dated:- 5-9-2011 - J.P. Devadhar and K.K. Tated, JJ. Suresh Kumar for the Appellant J.D. Mistri, Sr. Adv. with Rajeev Singh i/by Crawford Bayley and Co. for the Respondent JUDGMENT J.P. Devadhar, J 1. Whether the Income Tax Appellate Tribunal was justified in holding that the reopening of the assessment in the case of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/as against returned income of Rs.1,38,96,03,850/which represents Long Term Capital Gain. The A.O. during the course of assessment proceedings, noticed that assessee's working of taxable capital gains is incorrect and accordingly worked out the taxable long term capital gains u/s.48(1)(1). The Ld. CIT (A) upheld the view taken by the Assessing Officer by holding that in the present case, cost of acquisition will be the cost at which the assets were required and no indexation is to be allowed separately. 2. The said long term capital gain of Rs.1,42,85,91,065/was taxed @ 10% as per provisions to section 112(1). However, as per the provisions of section 112(1)(c)(ii), the amount of incometax calculated on such long term capital gains sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total income of an assessee includes any income, arising from the transfer of a longterm capital asset, which is chargeable under the head "Capital gains", the tax payable by the assessee on the total income shall be the aggregate of, (a)................ (b)................ (c) in the case of a nonresident (not being a company) or a foreign company, (i) the amount of incometax payable on the total income as reduced by the amount of such longterm capital gains, had the total income as so reduced been its total income; and (ii) the amount of incometax calculated on such longterm capital gains at the rate of twenty per cent; (d)................ Provided, that where the tax payable in respect of any income arising from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the original assessment order, wherein ten per cent tax has been levied by invoking the proviso to Section 112 of the Act. Therefore, in the absence of any reasons recorded to the effect that the proviso to Section 112 is not applicable to the case of the assessee or that the income of the assessee does not fall in any of the categories specified in the proviso to Section 112, the reopening of the assessment cannot be said to be valid in law. 9. The argument of the learned counsel for the Revenue was that the proviso to Section 112(1) refers to the second proviso to Section 48 and the second proviso to Section 48 is not applicable to a nonresident and, therefore, in the original assessment the proviso to Section 112(1) could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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