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2018 (4) TMI 572 - ITAT HYDERABADWithdrawal of the LTCG in the return filed in response to the notice u/s 148 - Reopening of assessment - transfer of property - Held that:- It is seen that the assessee, under a mistaken understanding, that there is a transfer of property has offered the LTCG. However, Article 265 of the Constitution of India mandates that the tax can be collected only in accordance with law. When there is no transfer and there is no capital gain arising to the assessee, the same cannot be brought to tax even if the assessee offered it for taxation in his return of income. Revenue’s objection that the assessee cannot claim a benefit in a return filed in response to the notice u/s 148 is not sustainable, because the assessee is not making a claim in the return filed in response to the notice u/s 148 of the Act but is withdrawing a mistaken claim already made in the original return of income. Further, the AO and the CIT (A) have not disallowed the assessee’s withdrawal of LTCG on this ground. Therefore, such an objection cannot be raised before this Tribunal in the second appeal and in the second round of litigation. In view of the same, we are of the opinion that the assessee’s withdrawal of the LTCG in the return filed in response to the notice u/s 148 is justified as there is no transfer of property and therefore, there is no long term capital gains be brought to tax. - Decided in favour of assessee.
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