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2012 (5) TMI 367 - ITAT, NEW DELHIRevision u/s 263 - on the issues regarding assessment of capital gain on mutual funds as business income and the capital contribution received from partner companies as deemed dividend U/S 2(22)(e) of the Act though both the issues are highly debatable and two opinions are possible - The only activity carried on by the assessee during the year under consideration was purchase and sale of mutual funds and securities - It is the claim of the assessee that by modifying clause (2) of the partnership deed the transactions entered into by the assessee become investments made by the assessee and recouping of the same investment - On the issue of applicability of section 2(22)(e) of the Act, it was contended by the Ld DR that the Assessing Officer did not examine this issue at all. It was submitted by him that if the Assessing Officer failed to make enquiry which was required to be made, the Ld CIT can assume jurisdiction u/s 263 - Held that: the Ld CIT was justified in coming to the conclusion that the impugned assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue as the Assessing Officer has failed to take into consideration Circular No.4/2007 dated 15.6.209097 and Instruction No.1527 dated 31st August, 1989 of the CBDT while computing the total income of the assessee - Appeal is rejected Regarding applicability of section 2(22)(e) - Ld CIT in his order u/s 263 of the Act has directed the Assessing Officer to enquire as to whether the partnership deed by which the assessee came into being was a device or not and if it was a device whether section 2(22)(e) of the Act was attracted in assessee's case - Held that: Ld. CIT has given specific finding on certain issues even though he has directed the AO to reframe the assessment as per the correct provisions of law and after giving the assessee adequate opportunity of being heard. We are of the considered opinion that he was not justified in giving such specific findings - Decided in favor of the assessee by way of remand to AO
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