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2017 (8) TMI 362 - AT - Income TaxRevision u/s 263 - sufficient ground for cancelling the assessment - set off of the loss on the sale of ZEEL shares against the profit of sale of Cebbco shares - trustee was holding the shares in the name of the trust - an order erroneous and prejudicial to the interests of the Revenue - Held that:- Where the Assessing Officer do not agree with the assessee he should discuss the same in the assessment order so that the assessee should know the reasons thereon and file the appeal. In this case the Assessing Officer after examining the issue on the points as has been referred by the Commissioner of Income-tax preferred not to make the addition. Therefore, in our opinion there is no error in the order of the Assessing Officer if he has not discussed the issue relating to each and every issue in the assessment order. On this basis, it cannot be concluded that the Assessing Officer has not made any enquiry. It is only the query raised by the Assessing Officer and the submission made by the assessee will speak of where the Assessing Officer has applied his mind or not A perusal of the order passed by the Commissioner of Income-tax indicated that the assessment order passed by the Assessing Officer was cancelled on the ground that the Assessing Officer has not made proper enquiry and verification in respect of the issue as discussed above. This, in our considered opinion, cannot be sufficient ground for cancelling the assessment. While making the assessment order, it is the satisfaction of the Assessing Officer who made the enquiry and it should be touchstone of assessment order passed by him. No cogent material or evidence was brought to our knowledge by the learned Departmental representative which may prove that view taken by the Assessing Officer in the case of the assessee was unsustainable in law. Therefore, we are of the view that the order passed by the Commissioner of Income-tax is illegal and without jurisdiction. If the order passed by the Commissioner of Income-tax is sustained then this will permit the illegality to continue and the subsequent action is carried out on the illegal order is also illegal per se. - Decided in favour of assessee.
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