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2022 (3) TMI 656 - ITAT MUMBAIReopening of assessment u/s 147 - Non disposal of objection of reopening - HELD THAT:- This is a fatal mistake. In paper book page 26-30 objection raised by the assessee against reopening 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. As in Asian Paints Ltd. Vs. DCIT [2007 (1) TMI 159 - BOMBAY HIGH COURT] 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, we set aside the orders of the authorities below on the ground of jurisdiction defect. Unexplained investment under section 69 - The assessee’s explanation is that it has given loan to some parties which gave the said shares to the assessee as securities. That the said party asked the assessee to sell the said shares and after selling the said shares assessee made entries for adjusting the amount received from loan given to the said party and returned the balance amount to the said party. Hence, there is no claim of long term capital gain under section 10(38) of the Act in the books of the assessee. This aspect has been duly supported by documents submitted. None of the above has been controverted by the Revenue. Hence, addition has been made without considering facts, law and income returned by the assessee. Such order without application of mind is not at all sustainable in law. Hence addition made under section 69 of the Act claimed to be for long term capital gain claimed exemption by the assessee under section 10(38) of the Act is not actually correct and same is liable to be set aside on this account also. Accordingly, decide the issue in favour of the assessee.
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