9911796707
TMI Blog2024 (12) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... rified, the reasons were not furnished to the petitioner which entitled the petitioner to request for a speaking order. Short term capital gains there were also loss from the sale of derivatives which has been denied merely on the ground that the return that was filed on 09.07.2021, could not be allowed as the returns were not e-verified - As per the decision in the case of Goetze (India) Ltd [ 2006 (3) TMI 75 - SUPREME COURT] a claim which was not made in the Return cannot be allowed by the AO. The Return that was filed by the petitioner on 09.07.2021 even though it was not e-verified, was admittedly substituted by another return on 11.03.2022. It cannot be said that the petitioner did not file the return to claim set off/deduction for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had failed to declare the correct taxable income in the return that was filed on 12.04.2017 and therefore a notice was issued to the petitioner on 31.03.2021 under Section 148 of the Income Tax Act, 1961. In response to the same, the petitioner has filed a return of income dated 09.07.2021, which was neither signed nor e-verified. Therefore, the same was not taken up for consideration. However, it appears that the petitioner has subsequently filed revised return on 11.03.2022. After proceedings was initiated pursuant to notice dated 31.03.2021, under Section 148 of the Income Tax Act, 1961, several communications/notices were sent from the Department. Ultimately, a Show Cause Notice dated 16.03.2022 was issued, wherein, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand would submit that the impugned Assessment Order dated 26.03.2022, that were made by the petitioner had claimed imaginary loss from sale of derivatives. It is further submitted that in the return that was filed by the petitioner on 12.04.2017, the petitioner had wrongly given the details of short term capital gain and had admitted to loss of Rs. 2,79,27,839/-. However, by a communication dated 24.02.2022, the petitioner has submitted that short term capital gain of Rs. 54,12,57,222/-. 7. That apart, it is submitted that the cost of acquisition was inflated and therefore the Assessment was completed and does not call for any interference. 8. I have considered the arguments advanced by the learned counsel for the petitioner and the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f derivatives as has been observed in the impugned order. 12. To balance the interest of both the petitioner and the Income Tax Department, the impugned order can be set aside and the case can be remitted back to the respondents to re-examine whether the claim of the petitioner on the alleged loss incurred from the sale of derivatives can be allowed or not, as invocation of Section 144 of the Act, for assessment by best judgment method in impugned Assessment Order is not justified. 13. Under these circumstances, the impugned order is quashed and the case is remitted back to the respondents to pass a fresh order on merits and in accordance with law. It is made clear that invocation of machinery under Section 148 of the Act for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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