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TMI Blog2022 (7) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... of 114 days in filing the appeals. Ld counsel for the assessee also reiterated the submissions stated in the condonation petitions and requested to condone the delay. Ld CIT DR opposed the condonation petition. 3. After hearing both the parties and considering the condonation petition, we are satisfied that the assessee was prevented by sufficient cause in filing the appeals within the stipulated period. Hence, we condone the delay of 114 days in both the appeals and admit the same for adjudication. 4. Facts being similar in both the assessment years under appeal, we take up for adjudication appeal for the assessment year 2010-2011 and decisions would apply mutatis mutandis to the assessment year 2011-12. 5. To consider the issues better, we are taking first ITA No. 300/CTK/2019 for the AY 2011-12, for adjudication. Facts of the case are that the assessee is a private limited company, filed the return of income disclosing the taxable income at Rs.6,05,510/- for the AY 2011-12. There was a search and seizure operation in the business premises in the case of Shree Jagannath Transport Corporation Ltd., & Group on 10.9.2014. In response to notice u/s.153C of the Act, the assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the same, the assessment order passed by the Assessing Officer on 28.12.2016 is hereby cancelled and the AO is directed to pass fresh assessment order on the issues mentioned in the show cause notice as per law after giving opportunity to the assessee. Hence, the principles of natural justice are also not violated. The assessee is requested to co-operate with the Assessing Officer in furnishing the details to complete the assessment at the earliest. 8. Ld A.R. of the assessee submitted as under :- 1. That This appeal is filed by the appellant against the order of the Id. Pr. CIT Central U/s.263 of the IT. Act holding the earlier order passed by the AO is erroneous so far as prejudicial to the interest of the revenue needs for further verifications and examination of the matter afresh without application of mind or found any new information that earlier order passed was lack of enquiry. 2. That the facts leading to the issues are that the appellant filed its return of income disclosing the taxable income at Rs.6,05,510/- subsequently the case was reopened U/s.153C of the IT. Act following to the search conducted u/s132 of the IT. Act, consequently the Appellant filed rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions as defined U/s.43(S) of the IT. Act and taxability head of such transactions is determined on the basis of purchase of investment and since the transactions are entered on regular or frequently manner these are taxable under head of profit and gain as normal business income and in case loss arises that will be set off against the business income not under the head of the capital gain. Therefore the findings of the Id. CIT is wrong and misinterpreted the 5ec.43(S) of the IT.Act. So in view of the facts of the case the AD has rightly allowed the claim of the appellant. 6. That in case of the second issue is concerned the appellant has shown total land cost at Rs.3,76,14,326/- including previous year of Rs.85,86,400/- land current year of Rs.2,90,27,926j- inclusive stamp duty etc. of Rs.19,27,926/- which have been shown in the balance sheet and the AO after verifying the balance sheet has accepted the transactions. Therefore no excess unaccounted money were incurred for purchase of the land. So the observations of the Id. CIT is non application of mind and the view taken in this case is also indicates the Id. CIT has not gone into the matter properly. Hence the proposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are unable to uphold the action taken by him under section 263 of the Act." 10. That, there must be some prima facie material on record to show that tax which was lawfully eligible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. The Id. AO on being satisfied with the explanation of the assesse, allowed the loss claimed by the appellant, which cannot be held to be 'erroneous' simply because 'in his order he did not make an elaborate discussion in that regard. Therefore, the order passed U/s.263 of the IT Act is based merely on change of opinion, hence not sustainable and liable to be quashed in toto. 9. Replying to above, ld CIT DR supported the order of the Pr. CIT. He submitted that the issues as raised by the Pr. CIT in the revision order has not been examined and discussed by the AO while passing the assessment order. He submitted that Pr. CIT has only set aside the assessment order with a direction to pass the assessment order afresh after considering and examining the above two issues. Hence, the assessee is at liberty to show the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer had duly raised the issue of not showing surrendered amount in return by assessee, in the notices, whereby he had required the assessee to produce the relevant books and bills for his verification. The record also showed that the contention of the assessee was found to be correct on verification and, therefore, the Assessing Officer had accepted the contention of the assessee that surrender had been made due to a bona fide mistake in calculation of stock as per books and that in fact there was no discrepancy in stock. The record also showed that purchases from various parties had duly been verified as the Assessing Officer had placed on record certified copies from such parties. [Para 6] In the light of the above factual background, it could not be appreciated as to how the Commissioner had recorded a finding that the assessment had been framed without application of mind or that difference the stock had not been properly examined. Unfortunately, his order was totally non-speaking and it did not convey as to what according to him should have been the proper examination by the Assessing Officer. The assessee had filed a detailed reply to his notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inquiry was not proper, the action taken by him under section 263 could not be upheld. [Para 7] The Commissioner had not bothered to examine the specific objections raised by the assessee in its reply in the impugned order and the Tribunal had rejected the same summarily by observing that the objections were not supported by any material. Both the authorities had failed to take the trouble of even referring to the assessment record. The letters written by the Assessing Officer to the Commissioner supported the contention of the petitioner that the case was being monitored by the Commissioner from time to time and the assessment order had been passed after a draft order along with the survey file had been forwarded to the Commissioner for his approval. Once the assessment order had been passed with the approval of the Commissioner the successor Commissioner could not possibly say that the matter had been decided without application of mind by the Assessing Officer. [Para 8] Consequently, the appeal was allowed, findings of the Tribunal were reversed and the order of the Commissioner was set aside. [Para 9] 14. Respectfully following the above legal pronouncement and on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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