2023 (9) TMI 796 - ITAT ALLAHABAD

Rectification u/s 154 - main grievance of the assessee is that it has earned long term capital gain from the sale of shares which has been brought to tax by the AO, and as per assessee, the same ought not to have been taxed because the said income is exempt u/s 10(38) - dismissal of appeal against order passed u/s 154 as appellant has not accepted the assessment order and filed an appeal against the order sought to be rectified, therefore he cannot ask for rectification of assessment order - HELD THAT:- We are of the considered view that this matter need to go back to the file of AO for fresh consideration of the matter, and assessee is directed to produce all the relevant records/evidences to prove that the assessee is entitled for exemption from tax on long term capital gains earned on the sale of shares as is stipulated u/s 10(38). Thus, without commenting on the merits of the issue, the matter is restored back to the file of AO for fresh consideration of the entire matter, after giving proper opportunity of hearing to the assessee.

Section 10(38) clearly lays down conditions for exemption, and if the assessee fulfills all the conditions, then the assessee is entitled for exemption on submission of relevant evidences, and it does not requires long drawn reasoning, and hence it could not be said that the issue cannot be adjudicated u/s 154. Thus, the appeal of the assessee is allowed for statistical purposes.