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TMI Blog2022 (12) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... e is allowed . Taking into consideration the above facts and circumstances of the case, we concur with the findings of the ld. CIT(A). Thus the appeal of the Revenue is dismissed. - ITA No. 311/JP/2022 - - - Dated:- 21-12-2022 - HON BLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER Assessee by : Shri Mukesh Khandelwal , CA Revenue by : Mrs. Monisha Choudhary , JCIT ORDER PER: SANDEEP GOSAIN , JM This appeal filed by the Revenue is directed against order of the ld. CIT(A) dated 15-06-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 wherein following grounds have been raised by the Department. 1. Whether on the facts and the circumstances of the case and in law the ld. CIT(A) was justified in quashing the order u/s 147/144 of the I.T. Act, 1961 passed on 8-12-2018 in the case of Smt.Chamboo Gupta on the basis of alleged order dated 25-07-2019 as per grievance of the assessee which is not an order in eye of law as it is not accompanied by ITNS Form, Demand Notice u/s 156, Penalty show notice etc. 2. Whether on the facts and the circumstances of the case and in law the ld. CIT(A) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee already had an assessment order dated 25.07.2019 passed by the AO wherein her contentions were accepted by the AO after due verification of material on record and hence she chose not to reply to the show cause notice of the new incumbent. Hence the new AO passed order dated 08.12.2019 u/s 147/144 of the Income Tax Act, 1961 and added Rs. 3,41,360 and Rs. 4,59,000 in the returned income of the assessee respectively. 2.2 Aggrieved by the order of the AO, the assessee preferred an appeal before the ld. CIT(A) who allowed the appeal of the assessee by observing as under:- 3. Decision 3.1 The main contention reopened on the same grounds on which even one earlier assessment has been completed on 25.07.19 and that the 2nd reassessment has been initiated even when the 1st assessment was due to be completed that there was change of incumbent assessing officer and the new of assessing officer has on the similar facts reopened the assessment within few months of earlier assessment order without having any new. information to warrant any action against assessee under section 148 of Income Tax Act 1961. 3.2 The 1st assessment which itself was completed under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue when that this power was very much available under section 263 of income tax act. Both the sections of the Act operate on entirely different planes and while they have the common objective of countering leakage of revenue, action against assessee has to be taken on specific provisions as per the law whether under 263 or under 148 and these 2 sections cannot be mixed up at will of the assessing officer. 3.5 It has been held repeatedly held that when an issue has been debated. and scrutinized in any assessment order the same cannot be used reopen the assessment once again. Any mistake leading to underassessment can only be cured by resort to revision under section 263 and it is not up to the assessing officer to go ahead or reopening of the assessment based merely on a change of opinion. 3.6 On the proposal of dates and the facts as given in the appeal and even disregarding the complaint filed by the appellant, it is clear that the 2nd assessment order cannot stand the test of appeal and hence is annulled. The appeal of assessee is allowed. 2.3 During the course of hearing, the ld. DR supported the order of the AO. 2.4 On the other hand, the ld. AR of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with or according to the intent and purpose of this Act As per above provisions the assessment order passed by ex AO cannot be held to invalid for non issue of ITNS, Notice of Demand and/or Penalty Notice etc. as the order so passed is otherwise in substance and effect in conformity with or according to intent and purpose of the IT Act. Such order had been passed after due verification of documents and explanations submitted by the assessee and hence was a valid order Therefore the ground of the department on the issue of invalid order passed by ex AO on 25.07.2019 is liable to be dismissed. Ground No. 2: Unexplained Investment in shares of VMS Industries The Id. CIT (A) has rightly quashed the order dated 08.12.2019 passed by the successor AO as per arguments submitted above. In this ground the department is aggrieved with the quashing of addition made by successor AO for Rs. 3,41,360 on account of unexplained investment in purchase of shares of VMS Industries as such addition had been made by him in his order dated 08.12.2019 which stood quashed due to quashing of the order by ld. CIT (A). Without prejudice to submissions made in ground no. 1 it is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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