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TMI Blog2020 (5) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... y of filing the CO only during the hearing on 6th June 2019 and it was pointed out that he could file cross objection for non-adjudication on merit by Ld. CIT(A) and in case the issue of jurisdiction u/s 147 is to be decided against the assessee, the assessee would be prejudiced despite of having meritorious case on merits. 4. On the other hand, Ld. DR objected the submission of assessee for delay of filing CO and filed a detail note in this regard, which is reproduced below:- It is said that the law of limitation is enshrined in the maxim that it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.. Delay can be condoned only if there is no gross negligence or deliberate inaction or lack of bona fide. Secondly, assessee should furnish acceptable and cogent reasons sufficient to condone delay. These are the pre-requisites for condoning delay. The test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. In othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Considered the rival submission and material placed on record, we notice that assessee has not filed cross appeal or cross objection against the order filed by the department and only during the appellate proceedings, it realized that it should file CO and since the delay in filing CO is already explained by the assessee through affidavit and it has already explained the reasons for such delay, which according to us, reasonable cause. Therefore, we condone the delay. 7. The brief facts of the case are that assessee is engaged in trading of silk yarn and fabrics and trading in securities and derivative securities. Assessee filed its return of income on 30.09.09 declaring total loss of Rs. 1,25, 38,35,120/-. Thereafter assessee has filed revised return of income on 30.03.11 revising the total loss of Rs. 1,25,41,63,342/-. The return was processed u/s 143(1) of the Act. Subsequently, the case was selected under CASS and notice u/s 143(2) and 142(1) of the Act were issued and served on the assessee. In the original assessment, AO made disallowance u/s 14A and determined the total taxable income at loss of Rs. 1,25,38,35,120/-. 8. AO issued notice u/s 148 on 24.03.14. When assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings, the AO has changed his stand and issued show cause on different issues, ie speculation (as per provision to explanation of section 73 of the Act). The AO could not establish the basis of which the reassessment proceedings has been initiated since it was found that transfer of shares are on account of treatment of shares by the appellant from investment to stock in trade. And this fact was not found to be false. Therefore, there was no proper reason found for reopening the assessment. Accordingly, I find force in the submission of the appellant. Therefore, ground no. 1 is allowed. Therefore, the other grounds were not adjudicated as the Ld. CIT(A) has dismissed the reopening of assessment. 10. Aggrieved with the above order, revenue has preferred the appeal before us on the grounds mentioned herein below:- 1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that re-assessment made under section 147 as invalid as the details were submitted at the time of original assessment for verification without appreciating the fact that a particular issue when brought to the notice of the assessing officer and the assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to our notice point no. 24 of the said notice. He further brought to our notice page no. 107 of the paper book which is a letter submitted by the AR of the assessee in response to notice issued u/s 142(1) and he submitted that assessee has not filed any relevant information before the AO on such loss. In this respect, he relied upon the following judgments:- i) Export Credit Guarantee Corp of India Ltd. Vrs. ACIT (2013) 350 ITR 651 (Bom) ii) Usha Inttl. Ltd. Vrs. DCIT (2015) 153 ITD 558 (Del) iii) Rollatainess Ltd. vrs. ACIT (2015) 173 TTJ (Del) iv) Greater Mohali Area Development Authority vrs. DCIT (2018) 93 taxman.com 441 (P & H) v) Ajai Verma vrs. CIT & Anr. (2008) 304 ITR 0030 (Alld) 13. On the other hand, Ld. AR brought to our notice page no. 116 of the paper book in which assessee has submitted before the AO, in the original assessment, a copy of the Board Resolution for conversion of stock-in-trade alongwith a copy of board resolution and relevant sale documents before the AO. Further, he brought to our notice page no. 100 of the paper book in which AO in point no. 21 of the notice u/s 142(1) of the Act has asked the assessee to file inter head /intra head set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the AO to believe that income chargeable to tax has escaped assessment and such prima facie reason has been communicated to the assessee. 15. He further submitted that assessee has filed all the details regarding conversion of shares into stock-in-trade as well as subsequent details of sale of those shares and offered the difference as long term capital gain /business loss as the case may be as per section 45(2) of the Act. 16. On the objection from Ld. DR on the submission of Ld. AR that this information were not asked by the AO, but assessee has filed themselves for which the Bench has asked DR to file order sheet copy of the assessment record in which whether the above information were submitted by the assessee itself or as asked by the AO. We notice that until today, no such information were brought on record by the Ld. DR, therefore we decide to set aside the objection of Ld DR and proceed to dispose off the appeal. 17. Considering the rival submission and material placed on record, we notice that assessee has converted the long term investment into stock-in-trade during this assessment year and assessee has also offered the long term capital gain on the date of conversi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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