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2017 (4) TMI 809 - AT - Income TaxValidity of protective assessment passed by the AO with regard to immovable property sold - AO received specific information under CASS - Held that:- In the case under consideration the AO had taxed the capital gains in the hands of the assessee as it was found that her husband had not filed return of income.In absence of a substantive order the AO was not justified in passing a protective order.Considering the above, we hold that the protective assessment passed by the AO was invalid and without the sanction of the law.So,reversing the order of the FAA,we decide first two grounds in favour of the assessee. Even on merits,the matter had to be adjudicated in favour of the assessee. The AO has gone only by the sale deed and has conveniently forgot the affidavit of the ex-husband of the assessee as well as the divorce decree.Tax liability has to determined by substance of a transaction and not by forum.DS had admitted that he was the sole owner of the part of flat F.1 and sale proceeds were received by him for selling the same.The AO/FAA had made no inquiry with DS. The assessee has discharged the burden cast upon her.It was the turn of the revenue authorities to make further inquiries in that regard. We find that they decided the issue without going to the substance and the surrounding circumstances. We are opinion that order of the FAA cannot be endorsed even on merits.Grounds decided in favour of the assessee
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