TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 656
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....hat the reopening of the assessment u/s. 147 of the Act was invalid since the pre-requisites of re-opening has not been complied with. 3. The Ld. CIT(A) has erred in law and in facts in confirming the addition of 21,23,378/- on account of long term capital gain on sale of equity shares of Diamant Infrastructure Ltd. allegedly claimed exempt u/s. 10(38) of the Act and treating the same as unexplained investments u/s 69 of the Act. 3. Brief facts of the case are as under :- The assessee is an individual deriving income from salary and income from other sources. The assessee filed ROI for A.Y 2012-13 on 31.07.2012 declaring total income of Rs. 23,11,030/-. The return of income was processed u/s 143(1) of the I.T.Act,1961 on 07.06.2013. Sub....
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....price movement etc. The Assessing Officer referred to the modus operandi in such cases. Finally he held that because of this investigation the assessee has traded in this script during F.Y. 2011-12 at Rs. 21,23,378/-. He held that the assessee has revised long term capital gain and claimed them to be exempt income under section 10(38) of the Act and same is treated as unexplained investment under section 69 of the Act. 5. Against the above order assessee has filed appeal before learned CIT(A). The NFAC has passed the appellate order. Before it in the statement of facts, the assessee had submitted that it has not traded in the impugned shares on its behalf. That the assessee has given loan to M/s. Ira Aarna Online Painting Pvt. Ltd. and in ....
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....ng Term Capital Gain to the beneficiaries. Hence, the A.O. made the addition, after giving the clear cut finding and after relying upon the statements of the brokers/operators regarding bogus LTCG. In the appellate proceedings before me, the written submissions have been filed. I have gone through the submissions of the assessee. Firstly, the assumption of jurisdiction u/s 148 has been challenged. The same is not correct as the A.O. had initiated the proceedings on the basis of information from the investigation wing. All the judgments, relied upon are not relevant as the A.O. had got information and on the basis of the same, the A.O. had formed the opinion and initiated the proceedings. Reliance is made upon the judgment of Hon'ble S....
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....d objection to the reopening vide his letter dated 14.5.2019. The Assessing Officer has ignored the objections filed and proceeded to issue notice under section 143(2) of the Act. Hence learned counsel submitted that not disposing of the objections against reopening of assessment is a jurisdictional defect in assessment order. Hence it should be treated as invalid and void ab initio. Further learned counsel submitted upon recording of the reasons and before issue of notice under section 148 of the Act Assessing Officer had obtained the approval from the higher authorities under section 151 of the Act. He claimed that the same is also invalid and not in accordance with law. In this regard learned counsel referred to the copy of the approval ....
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....eopening dated 15.5.2019 are duly attached. When the assessee has duly objected to the reopening it is incumbent upon the Assessing Officer to dispose of the same. Not disposal of objection to reopening is a fatal mistake and vitiates the order of Assessing Officer. Hon'ble Jurisdictional Bombay High Court decision in Asian Paints Ltd. Vs. DCIT (296 ITR 90) duly supports this proposition. When it remains uncontroverted that the assessee has objected to the reopening and the same was not disposed off the validity of jurisdiction by the Assessing Officer loses its legality on the touchstone of the aforesaid decision of Hon'ble Bombay High Court. Hence, I set aside the orders of the authorities below on the ground of jurisdiction defec....