TMI Blog2013 (6) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a short term capital loss which was disclosed by the assessee as capital loss and a request was made for the carry forward of the same. It was accepted by the Assessing Officer in the order passed under Section 143(3) for AY 2006-07. Thus it is evident that even if two views are possible and the Income Tax Officer has taken the view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. In favour of assessee. - ITA No.1077/Del/2013 - - - Dated:- 31-5-2013 - G. D. Agrawal And Shri Rajpal Yadav,JJ. For the Appellant : Shri Salil Agarwal, Advocate and Shri Shailesh Gupta, CA. For the Respondent : Shri R. S. Gill, CIT-DR. ORDER Per G. D. Agrawal, This appeal by the assessee is directed against the order of learned CIT-VIII, Delhi dated 24th January, 2013 passed under Section 263 of the Income-tax Act, 1961 for the AY 2008-09. 2. The assessee has raised various grounds. However, they are all against the invoking of jurisdiction under Section 263 by the CIT by which he set aside the assessment order passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 and he stated that the assessee has a substantial income from sale of shares which was Rs.4.56 crores. The Assessing Officer did not make adequate enquiry so as to verify whether the assessee's claim that the income is from capital gains is correct or it needs to be assessed as business income. Therefore, learned CIT rightly set aside the assessment for making assessment de novo after examining all the facts. He, therefore, submitted that the order of learned CIT should be sustained. 5. We have carefully considered the arguments of both the sides and perused the material placed before us. From a perusal of the order of learned CIT, we find that he set aside the assessment on the only ground that the assessment was completed without making requisite enquiry. It would be evident from paragraph 9 of the order of learned CIT which reads as under:- "9. To sum up, the Assessing Officer has completed the assessment without making requisite enquiry and also without due application of mind. Thus the impugned assessment order is erroneous in so far as it is prejudicial to the interest of revenue and is liable to be set aside. Accordingly, in the exercise of revisionary powers u/s 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove facts and figures. Other relevant details such as copy of brokers account of F O, Party-wise trade register, net position, transaction statements and relevant copy of bank statement have already been furnished. 3. With regard to short-term capital gain it is submitted that the assessee has not borrowed any money for Investment or otherwise. There has been no direct investment in shares and mutual funds and it was handled through portfolio managers only. The assessee was in employment as promoter director for more than 15 years in Pheonix Lamps Ltd. (presently known as Halonix Ltd.) and held shares as promoter in that company. Money received on sale in FY 2006-07 of such investment remained investment in mutual funds and other shares/securities through portfolio managers till identifying a new adventure/business in the financial year 2008-09 namely Indo Solar Ltd. In subsequent year the assessee has drawn income mainly by way of salary as Promoter Managing Director of Indo Solar Ltd., a new project identified and set-up by him. He never intended to do business in shares/securities. The assessee had earned hefty amount of dividend during the year as is evident from the ITR its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance is to be made, but where the assessee's claim is accepted generally no discussion is made in the assessment order. 9. In view of the above, we hold that the finding of the learned CIT that the assessment was made without requisite enquiry is factually incorrect. His finding that the assessment was made without due application of mind is also factually incorrect because the Assessing Officer made detailed and adequate enquiries and merely because such enquiries and his opinion are not discussed in the assessment order, it cannot be presumed that the assessment was made without application of mind. We also find that in AY 2006-07, there was a short term capital loss which was disclosed by the assessee as capital loss and a request was made for the carry forward of the same. It was accepted by the Assessing Officer in the order passed under Section 143(3) for AY 2006-07, the relevant portion of which reads as under:- "2. The assessee has shown short term capital loss of Rs.1,48,765/- in the computation filed with the return. This loss has been carried forward to the subsequent assessment years. In this regard, it is also noticed that the assessee has received dividend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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