9911796707
TMI Blog2012 (10) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the ld. CIT (A) has erred in confirming the action of the AO in treating the loss on sale/purchase of shares to be loss from speculation business invoking the provisions of Explanation to Section 73 of the Act and further in not allowing the set-off of loss on sale/purchase of shares from other income. 2. For a ready reference the grounds raised are reproduced here: "1. On the facts and circumstances of the case, the order passed by learned Commissioner of Income Tax (Appeals) [CIT (A)] is bad both in the eye of law and on facts. 2.(i) On the facts and circumstances of the case, the learned [CIT (A)] has erred both on facts and in law in confirming the action of the A.O. in initiating the proceedings under Section 147. (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. (iv) On the facts and circumstances of the case, learned [CIT (A)] has erred both on facts and in law in ignoring the contention of the appellant that the reassessment proceeding cannot be initiated to review the earlier order passed by the Assessing Officer under Section 143(3). (v) On the facts and circumstances of the case, the reassessment order is otherwise untenable in the eye of law in the absence of any addition on the ground for which the reassessment proceedings were initiated. 4.(i) On the facts and circumstances of the case, learned [CIT A)] has erred in rejecting the contention of the assessee that the learned A.O. h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny. After considering the various details and documents filed by the assessee, the assessment order u/s 143 (3) was framed on 27.2.2006 wherein the returned income of the assessee was accepted. Thereafter notice u/s 148 dated 29.3.2010 was issued supplying the following reasons to the assessee: "During the year the assessee company had a loss of Rs.2,26,39,436/-. The assessment u/s 143 (3) was completed on 27.02.2006 determining the assessed loss of Rs.2,26,39,436/-. Later, it was observed that the assessee had debited to P & L A/c a loss from share trading of Rs.2,11,49,686/- but as per the details filed by the assessee the loss worked out to Rs.1,88,03,485/- and the excess loss of Rs.23,46,201/- should have been added to the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) has not adjudicated upon the issue. He submitted that since the issue raised is legal in nature, the same can be decided by the Tribunal. He pointed out that the assessment could have been reopened u/s 147 by 31st March, 2008 whereas the notice u/s 148 has been issued by the AO on 29.3.2010. Thus the said notice is barred by 727 days. He referred the contents of proviso to Section 147 of the Act wherein it has been made clear that where assessment u/s 143 (3) has been made, no action u/s 147 can be taken after the expiry of 4 years unless income chargeable to tax has escaped by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment. The ld. AR submitted furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not filed the details to the extent of Rs.23,46,201/- with respect to loss on trading of shares claimed by it, whereas, while passing the assessment order he has ignored the said finding and has considered the figure of loss exactly the same as claimed by the assessee. Meaning thereby that the reasons for which the assessment was reopened have not been finally concluded. He submitted that since the main reason on the basis of which the assessment has been reopened has not been decided, the reassessment is bad in law and the order is liable to be quashed. In support he placed reliance on the decision of Hon'ble Bombay High Court in the case of CIT Vs. Jet Airways (I) Ltd. ITA No. 1714/2009. The ld. AR also referred page nos. 1 to 128 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in violation of proviso to Section 147 of the Act vide ground no. 3 (i) to the first appeal which has not been adjudicated upon by the ld. CIT (A). The ld. CIT (A) has however, upheld the validity of reopening on other ground. Since the ld. CIT (A) has not decided the issue of validity of the notice issued u/s 148 and assessment made in furtherance thereto u/s 147 read with 143 (3) of the Act in view of the proviso to section 47 of the Act, we in the interest of justice set aside the matter to the file of the ld. CIT (A) to decide the same after hearing the parties and in view of the decisions if any relied upon by them. Before the Tribunal the ld. AR has also questioned the validity of the assessment framed u/s 147 read with 143 (3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
