TMI Blog2003 (5) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ng defects in the return of income, a notice under s. 139(9) dt. 20th Feb., 1996 was issued and served on 2nd March, 1996. The assessee was required to rectify the defects within a period of 15 days which were not rectified, therefore, the AO treated the return filed on 29th Nov., 1995 as invalid and deemed to have never been filed. Thereafter, a notice under s. 148 dt. 22nd March, 1999 was issued and served on 30th March, 1999. The appellant-assessee filed a return of income of Rs. 1,06,560 on 16th April, 1999 in compliance to the said notice. The assessee had incurred a loss of Rs. 1,30,666 on share dealings in respect of 3700 shares of M/s Seva Mercantile Ltd. and the appellant-assessee was required to furnish certain details as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the contract notes are managed and obtained and not issued in the regular course of business, because no broker gives physical delivery of shares unless he has received the payment and in the case of appellant-assessee, even the learned CIT(A) doubted as to whether the broker through whom the transactions were effected exists or not and the assessee also failed to specify as to when the delivery of shares was taken. In respect of expenses as per para 8 of the appellate order also, the learned CIT(A) held that no expenditure has been incurred by the appellant-assessee for getting the shares transferred in its name and in view of the shares transferred in its name, the learned CIT(A) held that the appellant-assessee has not taken delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r grounds 1, 2 and 3 and this aspect of the matter has conveniently been ignored by the learned CIT(A), as there is no mention of the same in the appellate order. Shri Garg further submitted that the return of income filed under s. 139(1) being correct and complete, notice under s. 148 was not validly issued as the proceedings were already pending before the AO on the basis of return pending before the AO. Similarly, there being no income escaping assessment, proceedings under s. 148 could not have been initiated, therefore, the order passed on 29th Nov., 2000, is beyond time and without jurisdiction. Shri Garg also submitted that though the return of income was filed on 29th Nov., 1995, enclosing therewith two TDS certificates finding plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... response to so called notice under s. 148 under protest as the return was filed on 16th April, 1999, as per acknowledgement appearing on p. 22 of the paper book, notice dt. 31st July, 2000, issued under s. 143(2) of the IT Act as appearing on p. 23 of the paper book is beyond time, i.e., beyond one year, therefore, assessment framed is barred by limitation and is liable to be quashed as such. On merits also Shri Garg submitted that the transactions of purchase and sale of 3,700 shares of M/s Seva Mercantile Ltd. were through M/s N. Gupta Associates and the transaction and is on actual delivery and payments, the details of which were duly furnished and even the copies of accounts of the broker for the financial years 1994-95 and 1995-96, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A). 5. We have carefully considered the rival submissions. From the photocopy of paper book filed before us, it is evident that the appellant-assessee filed return of income along with details of TDS certificates, copy of auditors report and copy of letter dt. 6th Dec., 1995 addressed to the Asstt. CIT, Circle 2(2) and received in his office on 7th Dec., 1995, there is no mention of filing of return of income for asst. yr. 1995-96 on 30th Sept., 1995 and for filing of self-assessment tax, challan for Rs. 16,024 deposited with the RBI, Kanpur, on 27th Nov., 1995 and one TDS certificate for Rs. 16,508 which was not available at the time of filing of return has been attached along with the letter and in view of the same, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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