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2013 (6) TMI 501 - AT - Income TaxJurisdiction power u/s 263 by CIT(A) - no adequate enquiry was conducted by the AO with regard to the short term capital gain disclosed by the assessee - Held that:- The finding of the CIT that the assessment was made without requisite enquiry is factually incorrect. His finding that the assessment was made without due application of mind is also factually incorrect because the Assessing Officer made detailed and adequate enquiries and merely because such enquiries and his opinion are not discussed in the assessment order, it cannot be presumed that the assessment was made without application of mind. He examined the transactions entered into by the assessee by calling the brokers account, party-wise trade register, delivery register, bank statements etc. He also asked the assessee to explain why the income is to be assessed as short term capital gain, in response to which, reply of the assessee furnished detailed explanation in which the assessee has pointed out that he has not borrowed any money for investment in the shares/securities. As find that in AY 2006-07, there was a short term capital loss which was disclosed by the assessee as capital loss and a request was made for the carry forward of the same. It was accepted by the Assessing Officer in the order passed under Section 143(3) for AY 2006-07. Thus it is evident that even if two views are possible and the Income Tax Officer has taken the view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. In favour of assessee.
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