2018 (4) TMI 1896

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..... of reopening however, this particular fact whether the assessee has disclosed this amount in the return of income or not has escaped consideration by the Tribunal while deciding the issue. Hence, we are of the considered view that there is a mistake apparent on record in the impugned order and consequently we recall the impugned order of the Tribunal for fresh hearing and adjudication of the matter. The registry is directed to fix the appeal of the assessee for fresh hearing and adjudication in regular course. The parties to be informed about the next date of hearing. In the result, the miscellaneous application is allowed.
SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM Assessee by : Shri Manish Agarwal (C.A. Revenue by : Smt. .....

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..... t of disclosing the said amount in the return of income but the issue has been decided on the basis that the AO has duly disposed off the objections of the assessee. Hence, the ld. AR has submitted that the mistake in the impugned order goes to the root of the matter on the issue of validity of reopening therefore, the impugned order may be recalled for hearing and adjudication of the same afresh. 3. On the other hand, ld. DR has vehemently opposed to the miscellaneous application filed by the assessee and submitted that the Tribunal has decided the issue on merits after considering the relevant record as well as the contention of the assessee and therefore the decision given on merits cannot be reviewed in the proceedings u/s 254(2) of th .....

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..... ee in the return of income which was considered by the AO as not disclosed by the assessee while recording the reasons for reopening of the assessment. Therefore, this issue is more a factual in nature then, the legal as to whether the Assessing Officer has considered the correct facts while forming the belief that the income of ₹ 5,60,845/- has escaped assessment for the reasons that the assessee has not disclosed the same in the return of income. 5. On the contrary, the assessee has contended that the said amount has been duly disclosed in the return of income as part of the long term capital gain on sale of shares. We note that though the Tribunal while passing the impugned order has rejected the contention of the assessee against .....

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