TaxTMI 
TaxTMI 
2015 (12) TMI 504
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....as merely an untenable and concocted story which is non-cognizable and had no legal sanctity. 3. Learned counsel of the assessee supported the impugned order and submitted that it was a very bad practice to substitute a new order in the place of earlier order which has been passed on the back of the assessee which was not only bad in law but void ab initio. 4. On careful consideration of the above, we note that the CIT(A) concluded the issue in favour of the assessee with following observations:- "4.3. Decisions and reason therefor: Before I adjudicate upon the issue, it is important to mention that the ITO, Ward 1(2), Meerut was called upon vide this office letter No.226 dated 26.12.2011 to attend the appellate proceedings on 28.12.....
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....o quite balanced and justified in drawing attention of CIT, Meerut to this serious issue. We are unable to see any reason to interfere with the impugned order and we uphold the same on this issue. Ground no. 1 & 2 of the revenue are dismissed. Ground no. 3 of the revenue 6. We have heard arguments of both the sides and carefully perused the relevant material placed on record before us. Learned Departmental Representative replied that the earlier assessment order passed by the Assessing Officer on the same date was a part of record, hence, there was no additional evidence which attracts provisions of Rule 46A and the assessee never filed any additional evidence during first appellate proceedings. 7. On careful consideration of rival subm....
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....enied by the AR. The AR has placed on record a copy of his petition dated 17.11.2008 duly received in the ITO's office wherein he has raised his objections that notice under section 143(2) was not served within 12 months and, hence, the assessment proceedings were bad in law. In the order under appeal, the AO has not dealt with this objection. He has only stated that notice was issued on 27.9.2007 and was duly served. In the order in which he has accepted the returned income, the A.O. has not mentioned the fact of service at all. In view of the circumstances of the proceedings, the valid service of notice within time comes under serious doubt." 11. In view of above, when the Assessing Officer himself went wrong in holding valid service of....
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....and dicta laid down by Hon'ble High Court of Delhi in the case of CIT vs Jubilant Securities P. Ltd. (supra), firstly we observe that the first appellate authority granted relief to the assessee with following conclusion:- "6.4. Decision and reasons therefor: I have carefully considered the reasons discussed by the A.O. in the impugned order for assessing the gain on the sale of shares as profits and gain of business as against Capital gains claimed by the assessee. The A.O. has observed in the Assessment order as under: a. During the year the Assessee has made 97 transactions of the sale and purchase of shares through Kotak Securities and 370 transactions through Alankit Assignments Ltd. b. In this way the Assessee might have be....
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....n though the A.O. treated the appellant to be dealer in shares, AO did not allow the rebate u/s 88 E of the Act . In this factual back ground, I find that when the assessee could get benefit of valuation loss or rebate u/s 88 E , the A.O. did not regard the appellant to be a dealer in shares. I find also that the assessee's conduct all through was uniform. The assessee accounted for the investments in his books at cost and no valuation loss was accounted for by the assessee nor any deduction was claimed. Being an investor the assessee did not claim Rebate u/s 88E and the income was disclosed under the head "Capital Gains". In none of the past assessments the assessee was considered to be a dealer in shares by the Revenue and Income from sal....