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TMI Blog2022 (3) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 517/Mum/2021 A.Y 2014-15 as a lead case and the facts narrated therein. The assessee has raised the following grounds of appeal: 1. The Principal Commissioner of Income Tax -20, Mumbai [hereinafter referred to as the Pr. CIT] erred in framing an order dated 24/03/2021 under section 263 of the Income Tax Act, 1961 to set aside the order of the Asstt. Commissioner of Income Tax -20[2], Mumbai [hereinafter referred to as the Assessing Officer] by holding that the assessment order dated 28/12/2017 passed by the Assessing Officer under section 143[3] r.w.s.147 of Income Tax Act, 1961 is erroneous and prejudicial to the interest of the Revenue and consequently, directing the Assessing Officer to frame the order of assessment de novo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome from other sources. The assessee has filed the return of income for the A.Y. 2014-15 on 22.07.2014 with a total income of Rs. 60,77,230/-.The A.O has reason to believe that there is income escaping the assessment and issued notice u/s 148 of the Act. In compliance, the assessee has filed a letter to treat the return of income filed earlier on 22.07.2014 as a due compliance. The A.O has provided the reasons for reopening of assesseement to the assessee. Subsequently notice u/s 143(2) and 142(1) of the Act are issued. In compliance, the Ld. AR of the assessee attended from time to time and submitted the information and the case was discussed. The A.O on perusal of the facts and the submissions found that assessee has obtained long term ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued. The PCIT is of the opinion that the A.O has not dealt on the transactions of purchase of shares and has not conducted any enquiry on the disputed issue. Therefore the entire sale proceeds on transactions of shares should be treated as part of sale consideration and set aside the assessment order and directed the assessing officer to frame fresh Assesseement and passed the order u/sec263 of the Act dated 24-03-2021. Aggrieved by the revision order, the assessee has filed an appeal before the Honble Tribunal. 4. At the time of hearing, the Ld. AR submitted that the A.O. has considered the facts and after verification and examination of disputed issues has denied the exemption 10(38) of the Act and treated the proceeds from sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted the assessment in view of provision u/s.143(3) r.w.s. 147 of the Act raising the addition on account of long term capital gain in sum of Rs. 47,37,582/-. It is argued by the ld. representative of the assessee that once the issue has already been raised by the Assessing Off icer and thereafter, the claim of the assessee was denied then, in the said circumstances, the assessment could not be revised in view of provision u/s.263 of the Act. In support of this contention, the ld. representative of the assessee has placed reliance on the case based upon similar circumstances titled as Mrs. Manisha Ajay Shah vs. Pr. CIT-30 in ITA No.3001/Mum/2019 dated 14/10/2020. The copy of this order is placed in the file and relevant finding is hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. at page 19 of the Paper Book. The documents furnished by the assessee clearly indicates that the shares were indeed purchased by the assessee through banking transactions. It is not the case of the Revenue that the amount paid by the assessee for purchase of shares has travelled back to the assessee in the form of cash or any other manner. 6. The provisions of section 263 of the Act can be invoked if , the twin conditions mandated under the section are satisf ied, i.e: (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the revenue. If any one of these two conditions is absent, the Commissioner of Income Tax cannot take recourse to section 263 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the statutory notice u/sec148 and 142(1) of the Act and the show cause notice. The submissions of the Ld. AR are realistic duly supported with the material information and judicial decisions. We Considering the overall facts, circumstances, ratio of the judicial decision and the details submitted in the course of hearing are of the view that the if any query is raised in the assessment proceedings and it was responded by the assessee, mere fact that it is not dealt within by the A.O. in the order cannot implied that there is no application of mind. Hence, the PCIT action cannot be acceptable as the order passed by the A.O. does not satisfy the twin conditions of erroneous and prejudicial to the interest of the revenue. Accordingly we d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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