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TMI Blog2021 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... grievances revolve around a single issue namely the learned PCIT has erred in taking cognizance under Section 263 of the Income-tax Act, 1961 ("the Act" in short) and setting aside the assessment order dated 24.12.2018 directing the Assessing Officer to pass a fresh assessment order. 2. With the assistance of learned representatives, we have gone through the record carefully. A very short issue has been raised in this appeal, i.e. whether the learned Commissioner, while exercising the powers under Section 263 of the Act, can take up a new issue out of re-assessment order/proceedings inspite of the fact that no addition was made by the Assessing Officer on the point for which assessment was reopened. 3. The assessee has originally filed he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, required to compute the gains arising from such transfer adopting the value as per revaluation done and as per the provisions laid down in Sec. 45(3) of the IX Act and offer the capital gain for taxation. 2. Vide letter dated 07.03.2018 emailed to the ITO, Ward-5(3)(2), Ahmedabad, assessment records of M/s. Nami Parixit Metal Industries for A.Y. 2011-12 were called for which have been forwarded by the concerned AO. On scrutiny of the said case records, copy of partner's capital accounts (including assessee's capital a/c.), return of income and the Computation of Income for A.Y. 2011-12 of the assessee are also found placed on record. On verification of the capital a/c. of the assessee in the books of the said firm, it is noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion dated 01.11.2018 and 17.12.2018 reply which was perused and placed on record. 3. In response to notice u/s. 148 of the I.T. Act dated 26.03.2018, assessee filed her return of income on 30.04.2018 but the same was not e-verified by the assessee. Therefore, on the basis of information available on the records and written submission furnished by the assessee, the assessment is being made u/s. 144 of the I.T. Act i.e. best judgment assessment by this order. 4. Subject to above remarks and discussion, total income of the assessee is computed as under:- Rs,. Total income as per return of income NIL Assessed Income NIL Assessed u/s. 144 r.w.s. 147 of the I.T. Act. Calculate tax, charge interest u/s. 234B & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed that neither the assessee has disclosed the particular section of the I.T. Act under which the exemption/deduction has been claimed out of the LTCG derived nor the Assessing Officer has verified the sale of shares and huge LTCG exemption claimed by the assessee. The Assessing Officer was required to collect details and evidences from the assessee and if further required, to conduct third party enquiries and verify the genuineness of the sale of shares, deduction claimed and set off of LTCG against business loss, claimed by the assessee. The AO should have allowed the deduction/exemption and set off of LTCG against business losses only after deriving conclusions on the basis of details and evidences collected as a result of any invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer has failed to verify the exemption claimed of Rs. 73,59,067/- in the return of income filed in response to notice u/s. 148 as well as the cost of acquisition after indexation claimed at Rs. 7,22,791/- with relevant documentary evidences. Such lack on the part of the AO has made the assessment order erroneous and prejudicial to the interest of revenue. It is for the Assessing Officer to examine and to apply the correct position applicable as per law. There is absolute failure on the part of the Assessing Officer in this regard and it is such failure which calls for revision of the assessment order u/s. 263 of the Act." 6. A perusal of the reasons extracted supra, it would reveal that the learned Assessing Officer sought to reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer during the re-assessment proceedings has been construed by the Hon'ble jurisdictional High Court as well as Hon'ble Delhi and Bombay High Courts in the cases of CIT Vs. Mohmed Juned Dadani (2013) 355 ITR 172 (Guj); Ranbaxy Laboratories Ltd. Vs. CIT, 336 ITR 136 (Del) and CIT Vs. Jet Airways (I) Ltd. 331 ITR 236 (Bom.). All the three Hon'ble Courts are unanimous in concluding that the expression "and also" would give an indication that any other point exhibiting escapement of income comes to the notice of the Assessing Officer during reassessment proceedings would only be entertained if addition is being made on the point for which assessment is being reopened. In other words, if no addition is being made on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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