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2016 (9) TMI 1572 - AT - Income TaxJurisdiction of ITO to frame the assessment - as per the return of income filed by the assessee in pursuance to notice u/s 142 (1) the assessee declared total income - HELD THAT:- In the facts of the present case, the judgment of KAPIL JAIN [2010 (8) TMI 1033 - DELHI HIGH COURT] cited by the ld. DR of the revenue is not applicable. Regarding this contention that this circular is applicable only in those cases where return is filed u/s 139 (1) and it is not applicable where return is filed u/s 142 (1) after survey, We feel that there is no merit in this contention because there is no such restriction in the circular and otherwise also, if ITO is not considered to be competent to frame an assessment where return is filed u/s 139 (1) declaring income in excess of a specified limit, then how the ITO can be competent to assesss similar return but filed after survey u/sc 142 (1). Hence, this contention is rejected. We hold that the assessment order passed by the ITO in the present case is not a valid assessment order and hence, we set aside the same and restore the matter back for framing a de-novo assessment by a competent Officer being ACIT or DCIT. In view of our decision, other grounds raised by the assessee in its appeal and the appeal of the revenue do not require any separate adjudication at this stage. Appeal of the assessee is allowed for statistical purposes and the appeal of the revenue is dismissed.
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