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TMI Blog2013 (10) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Arora, A.M. And Shri Amit Shukla, J.M.,JJ. For the Appellant : Shri Hariom Tulsyan For the Respondent : Shri Preetam Singh ORDER Per Sanjay Arora, A. M. This is an Appeal by the Assessee contesting the Order by the Commissioner of Income Tax-1, Mumbai ('CIT' for short) dated 24.03.2011 under section 263 of the Income-tax Act, 1961 ('the Act' hereinafter) passed in its case for the assessment year (A.Y.) 2006-07. 2.1 Opening the arguments for and on behalf of the assessee, it was submitted by the ld. Authorized Representative (AR), its counsel, that the assessee challenges the impugned order both on jurisdiction as well as on merits. The assessee was during the course of the assessment proceedings required by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order, but the presumption in law would only be that there has been due application of mind, referring to the decisions in the case of Paul Mathews And Sons vs. CIT [2003] 263 ITR 101 (Ker) and CIT vs. Kelvinator of India Ltd. [2002] 256 ITR 1 (Bom). The assessee has consistently shown it's share-holding as by way of investment. In fact, therefore, the A.O. had taken the only view possible under the circumstances. 2.2 The ld. Departmental Representative (DR), on the other hand, would take us to the findings by the ld. CIT at paras 6 to 9 (pgs.16-17) of his order. It would be apparent there-from that the assessee is engaged in speculative transactions, which could by no means be treated as investments, whether short term or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to be liable for revision u/s.33B of the Income-tax Act, 1922, which is para materia to s.263 of the Act. In the case of Smt. Tara Devi Agarwal (supra), the other case relied upon by the Revenue, despite there being material on record that should have put the A.O. on inquiry he did not cause proper verification and proceeded to make the assessment accepting the income as returned. The assessment was accordingly held as rightly subject to revision. 3.2 In this background, we may begin by delineating the issue(s) that arise before us for adjudication. The same, or the foremost among them, in our view, is the validity of the invocation of section 263 of the Act by the ld. CIT in the facts and circumstances of the case, i.e., the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari Devi Saraogi (supra) and Smt. Tara Devi Aggarwal (supra), relied upon by the Revenue before us, it stands explained that the position and function/s of an Income Tax Officer is different from that of a civil court. In its words, the statements made in a pleading proved by the minimum of evidence may be adopted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives a decision on the basis of the pleading and the evidence which comes before it. The Income-tax Officer, on the other hand, is not only an adjudicator but also an investigator. He could not remain passive in the face of a return which is apparently in order but calls for further enquiry. It is his duty to ascertain the truth of the facts st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind to the various aspects of the assessment, partly accepting the assessee's case. It is in view of these findings, which are findings of fact, that the hon'ble court found no case for revision, relying in fact for legal support on the same decisions as by the Revenue before us, i.e., in the case of Malabar Industrial Co. Ltd. (supra) and Tara Devi Agarwal (supra). The decision in the case of Kelvinator of India Ltd. (supra) would not apply inasmuch as the same is qua reassessment, so that a change of opinion would invalidate reassessment proceedings. This is as the law does not provide for review of his order by the assessing authority, while section 263 specifically confers power of review of its order by the CIT, and on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gathered from the scrip-wise, date-wise details (para 6 of the impugned order); - the assessee had sold all the shares brought forward by it as on 01.04.2005, again buying the same stock (para 8); - the volume and frequency of transactions, a number of scrips traded in (para 8 of the impugned order). Accordingly, directions were issued by the ld. CIT vide para 10 of his order to the A.O. to decide the issue of taxability of the impugned 'gains' afresh in accordance with the law, keeping the CBDT circular/s in view, by issuing definite findings of fact and after allowing the assessee proper opportunity of being heard. Decision 4. We find that the assessee has not been able to controvert clear findings of fact by the ld. CIT in an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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