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TMI Blog2012 (10) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes. - I.T.A. NO. 5649/Del/2011 - - - Dated:- 8-10-2012 - SHRI I.C. SUDHIR, AND SHRI T.S. KAPOOR, JJ. Assessee by: Sh. Ved Jain, Adv. Revenue by: Smt. Veena Joshi, Sr. DR. ORDER PER I.C. SUDHIR, JM: The assessee has impugned first appellate order on several grounds. The ground no. 1 is general in nature and in ground nos. 2 to 5 the assessee has questioned the validity of notices issued u/s 148 and assessment made in furtherance thereto u/s 143 (3) read with 147 of the Act. In ground no. - 6 the first appellate order has been questioned on the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both in the eye of law and on facts, as the assessee had already disclosed fully and truly all material facts necessary for the assessment under Section 143(3). (iii) 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 initiated under Section 147 after a period of four years from the end of the relevant assessment year in the case where original assessment was completed under Section 143(3) is bad in law without there being any allegation that there has been a 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned A.O. in not allowing the set off loss on sale/purchase of shares form the other income. 3. Since the issue raised in ground nos. 2 to 5 is regarding the validity of notice issued u/s 148 and the assessment framed in furtherance thereto, which goes to the root of the matter, we preferred to adjudicate upon the issue first. 4. The relevant facts are that the return of income for the assessment year 2003-04 under consideration was filed by the assessee on 28.11.2003 declaring a loss of Rs.2,26,39,436/-. The said return was processed u/s 143 (2) and thereafter the case was selected for 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that before the ld. CIT (A) the validity of notice issued u/s 148 and the assessment framed in furtherance thereto was also questioned on the ground that the case has been reopened after a period of 4 years from the end of the assessment year without there being any whisper in the reasons so recorded for reopening that the income has escaped assessment due to the failure on the part of the assessee to disclose fully and truly the material facts necessary for assessment and more so when the original assessment was made u/s 143 (3) vide ground no. 3 (i) of the first appeal. However the ld. CIT (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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Tanna Builders (P) Ltd. Vs. Neela Krishnan and Ors. 283 ITR 448 vii KCP Ltd. Vs. ITO (1984) 146 ITR 284 (AP) viii Garden Silk Mills Ltd. Vs. DCIT 222 ITR 27 (Guj) ix Vareli Weavers pvt. Ltd. Vs. DCIT 240 ITR 77 (Guj) x Krishnan Metal Industries Vs. ACIT 225 ITR 853 (Guj) xi Kapital Business System Ltd. Vs. ACIT ITA Nos. 4775 4776/Del/2007 (A.Ys. 1998-99 and 2004-05) order dated 2010 xii ITO Vs. Varun Sharma ITA No. 5441/Del/2011 (A.Y. 2004-05) order dated 31.5.2012 8. The ld. AR contended further that the assessment was reopened by the AO by recording the reasons that the assessee had 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per law showing reasons to belief though based on information from the audit party but after approval of competent authority. He placed reliance on the decisions followed by the ld. CIT (A) while confirming the validity of notice issued u/s 148 and the assessment made in furtherance thereto. He placed reliance on the decision of Hon ble Supreme Court in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers P. Ltd. (2007) 291 ITR 500 (SC). 10. Considering the above submissions we find that the issue regarding validity of notice issued u/s 148 was questioned before the ld. CIT (A) also on the basis that it 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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