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2019 (1) TMI 856 - ITAT MUMBAIReopening of assessment - Claim of rebate u/s. 88E - Review in the garb of re-assessment - Held that:- It is undisputed fact that the assessee was assessed u/s 143(3) and the reassessment proceedings were initiated beyond 4 years from the end of relevant AY. Pre-conditions to invoke the reassessment proceedings u/s 147 was that the AO had reasons to believe that certain income escaped assessment and such escapement has occurred due to failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. So far as the formation of reasons is concerned, it is undisputed fact that no tangible material came into the possession of AO which suggested any escapement of income against the assessee & the belief was based on same set of material which was available before Ld. AO during original assessment proceedings. It is trite law that AO has the power to re-assess but no power to review. Review in the garb of re-assessment was not permissible. The revenue is unable to point out any tangible material suggesting escapement of income, which came into the notice of AO subsequent to completion of assessment proceedings. Specific question as to allocation of expenses were raised against the assessee during original assessment proceedings which were duly addressed by the assessee with supporting details / workings. This is further fortified by the fact that the adjustment of speculation loss was incorporate during rectification proceedings upon being pointed out by the assessee himself. These facts have already been noted by first appellate authority which could not be controverted by revenue in any manner. No hesitation in upholding that the reassessment proceedings were bad in law and the lower authorities could not be permitted to review the already concluded matter. So far as the merits of the case are concerned, we find that the assessee had already allocated the expenditure between share trading activity and brokerage business on a reasonable basis. It emanates from the records that the assessee had allocated administrative expenditure aggregating to ₹ 24.67 Crores i.e. ₹ 2.63 Crores against trading in shares and ₹ 22.03 Crores against derivative trading as against the estimation of ₹ 15 crores made by AO and therefore, the same was factually incorrect. CIT(A) has already provided relief to the assessee on merits and we concur with the same. - Decided against revenue
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