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2016 (2) TMI 432 - ITAT AHMEDABAD

2016 (2) TMI 432 - ITAT AHMEDABAD - TMI - Revision u/s 263 - undisclosed business income - Held that:- As the assessee has placed on record computation of income, details of expenditure and all other details called for by the AO. The assessee has an income of ₹ 906/- under the head “Business Income”. This income was earned by the assessee from renting of weigh-bridge. In our opinion, the ld.Commissioner was of the view that against an income of ₹ 906/- from the operation of weigh-bri .....

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re to be given to the assessee, even if in a particular year no business activity was carried out. The assessee has shown operation of weighbridge and income therefrom. Therefore, the ld.Commissioner is not justified in taking action under section 263 of the Income Tax Act - Decided in favour of assessee - ITA No. 605/Ahd/2015, ITA No. 606/Ahd/2015 - Dated:- 12-2-2016 - Shri Rajpal Yadav, Judicial Member And Shri Anil Chaturvedi, Accountant Member For the Petitioner : Shri Tushar Hemani For the .....

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hd/2015. 3. The grievance of the assessee is that the ld.Commissioner has erred in taking cognizance under section 263 of the Income Tax Act, and thereby setting aside the assessment order dated 31.10.2012 for re-adjudication of the issues. 4. Brief facts of the case are that the assessee has filed its return of income on 28.9.2010 declaring total income at ₹ 9,100/-. The case of the assessee was selected for scrutiny assessment and notice under section 143(2) of the Income Tax Act was iss .....

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ER OF INCOME-TAX, AHMEDABAD-II 1st Floor, Navjeevan Trust Building B/h. Gujarat Vidyapith, Ahmedabad 380 014. No.CIT-II/ABD/Tech/263/07/2014-15 Date :18th September, 2014 To, Principal Officer Jay Agriculture & Horticulture Products P. Ltd. Ambuja Tower, Opp. Memnagar Satation Vijay Char Rasta Navrangpura Ahemdabad. Sir, Sub: Notice u/s.263 of the I.T.Act 1961 A.Y.2010-11. Kindly refer to the above. 1. The assessee filed its return of income for A.Y.2010-11 on 28 Sept 2010 declaring income o .....

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see claimed to have payment made as ₹ 34,00,000/- as advance tax payment and ₹ 2,35,000/- as self-assessment tax. However, no proof in this respect was furnished by assessee, ii) In the assessment order, the income was computed at ₹ 79,100/- without any reference of tax liability u/s 115JB. In I.T.N.S. 150, the returned income was computed as "NIL" with no tax. iii) In computation of income, assessee did not claim expenditure of Rs,10,14,133/- apparently due to no bus .....

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t, such LTCG on ₹ 2,17,29,927/- is worked out at ₹ 49,24,001/-by which assessee's total income computed under regular provisions of I.T. has remained to be brought to tax. 3. On perusal of the case records, it is also seen that as per assessee's own submission, its main object was business of planting, growing and other agricultural activities (The said object had been inserted w.e.f. 19.04.2007 in the Memorandum of Association). In this context, the proceeds on sale of share .....

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ed that the equity shares in question were acquired on 31.12.2004 but the assessee company itself was incorporated on 06.06.2006. ii) There were no verification/inquiry or at least calling for the information and supporting evidence w.r.t the 'cost of acquisition' of shares in question, iii) No verification/inquiry was made w.r.t the 'buyback' offer price at which assessee claimed to have sold partial equity holding. iv) No inquiry was made w.r.t the 'cost' of equity shar .....

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whether such investment was made with RBI approval and on what terms and conditions. 4. Clearly, all the above mentioned factors ought to have been verified by the AO before finalization of the assessment proceedings and failure to do so resulted in non-assessment of the profit from the sale of equity shares. 5. Considering the facts and circumstances as mentioned above, it is clearly established that the order dated 31/10/2012 passed by the ITO. Wd.4(2), Ahmedabad is erroneous in so far as it i .....

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the said date. Yours faithfully, Sd/- (P.C. MODY) Commissioner of Income Tax Ahmedabad-II, Ahmedabad. 5. In response to the show cause notice, the assessee has filed a reply and annexed the following documents before the ld. commissioner: SN. DESCRIPTION OF PAPERS Pg. No. 1 Copy of Incorporation certificate of Jay Trading & Investment Services Pvt. Ltd. dated 06-06-2006 1 2 Copy of fresh certificate dated 23-04-2007 for incorporation consequence upon change of the name from Jay Trading & .....

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of transfer of shares 7&7A Copy of letter of company and Board of Investment for approval of buyback of 30% equity shares of the company @ 95/- per share (Sri-Lankan Rupee) 8 to 9 8 Agreement for re-purchase of 625074 shares between M/s. Royale Export Ltd and Jay Agri dated 09/12-06-2009 10 to 14 9 Remittance letter from M/s. Royale Export Ltd. for re-purchase / buyback of shares 15 10 Copy of letter filed by company for FIRC with PNB in the matter of Buyback of shares dated 26-06-09 16 11 .....

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e ld.Commissioner has set aside the assessment order with direction to the AO to pass a fresh assessment order determining the total taxable income of the assessee. While impugning the order of the ld.Commissioner, ld.counsel for the assessees has raised three fold submissions, viz. - (a) That there is a distinction between inadequacy or lack of inquiry. The inadequacy of inquiry cannot be a ground to take action under section 263 of the Income Tax, because if the AO after conducting an inquiry .....

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oncerned, such transaction is covered under Article 13 (4) and (5) of the DTTA between India and the Sri Lanka. Capital gain is taxable in Sri Lanka, and therefore, even after re-verification of the transaction, the ultimate gain would not be taxable in India, and therefore, there is no prejudice to the Revenue. The ld.Commissioner failed to take cognizance of this argument of the assessee raised before him, which has duly been noted in para-6(iii). As per the DTAA between Republic of India and .....

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ces Ltd. (JCSL) had acquired shares of Royale Exports Ltd. The assessee has acquired 20,83,580 shares of Royale Exports Ltd., Sri Lanka from JCSL at the rate of ₹ 4.655/- per share aggregating to ₹ 97.00 lakhs. These shares were acquired on 1.2.2007. Approval for purchase of shares as mentioned above was received from Board of Investment of Sri Lanka on 21.2.2007. Such approval has been placed on page no.4 of the paper book. The share certificate in the name of the assessee was recei .....

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e letter dated 23.6.2009 was sent by Royale Exports Ltd. through SBI, Colombo. A copy of the letter dated 23.6.2009 with regard to inward remittance of US dollar 5,07,935 was forwarded by the assessee to Punjab National Bank, which is placed at page no.16 of the paper book. The assessee intimated RBI about such buy-back vide letter dated 8.7.2009. In response thereto, certificate of foreign inward remittance was received from PNB as per which, a sum of ₹ 2,46,38,132/- was credited against .....

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e at book profit, because, under the regular provision no capital gain was to be taxable in the hands of the assessee. The ld.AO had issued a show cause notice under section 143(2)/142(1) of the Income Tax Act on 9.8.2012. A copy of this notice has been placed at page no.87 and 88 of the paper book. Thereafter, the assessee has submitted the details with regard to buy-back of shares by Royale Exports Ltd. vide letter dated 22.10.2012. The ld.AO has passed the assessment order on 31.12.2012. The .....

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ereafter, he drew our attention towards page no.54 of the paper book, where the profit & loss account for the year ending 31.3.2010 has been placed on record. Under the schedule of income, only income is profit on buy-back of long term investment. Thus, according to the ld.counsel for the assessee, once the AO has called for information on this issue, then, it cannot be said that this issue was not examined by the AO or it escaped from his knowledge. On the strength of the Hon ble Delhi High .....

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egard to the sale of shares of Sri Lankan Company, but the ld.CIT was required to record a firm finding as to how the order is erroneous. In other words, the ld.counsel for the assessee submitted that once the assessee has placed on record complete details before the AO, then, the CIT ought to have recorded a finding, demonstrating the fact as to how the AO failed to conduct a proper inquiry. In support of his contentions, he relied upon the decision of the Hon ble Delhi High Court in the case o .....

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ch they have been issued. Had the ld.Commissioner has considered this issue, then, probably, he would not have set aside the assessment order and restore this issue to the file of the AO, because, ultimately, even after carrying out the whole exercise the result will be the same, which will be adopted by the AO. No long term capital gain would be taxable in the hands of the assessee. In support of his contentions, the decision of the Hon ble Karnataka High Court in the case of CIT vs. D.G. Gopal .....

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dered rival contentions and gone through the record carefully. Section 263 has a direct bearing on the controversy, therefore, it is pertinent to take note of this section. It reads as under:- 263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being hear .....

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essment made by the Assistant Commissioner or Deputy Commissioner or the Incometax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf un .....

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h matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the App .....

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3 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pe .....

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a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. He may set aside the order and direct the Assessing Officer to pass a fresh order. At this sta .....

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inciple to judge the action of CIT taken under section 263. (i) The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled. (ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice the requi .....

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der law (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to .....

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be erroneous simply because in his order he does not make an elaborate discussion in that regard. 15. Apart from the above principles, we deem it appropriate to make reference to the decision of the Hon'ble Delhi High Court in the case of CIT vs. Sun Beam Auto reported in 227 CTR 113 referred by ld. Counsel for the assessee, and Gee Vee Enterprises Ltd vs. Addl. Commissioner of Income Tax (99 ITR 375). In the case of Sun Beam Auto, the Hon'ble High Court has pointed out a distinction be .....

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he submission of learned counsel for the revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order which apparently does not give any reasons while allowing the entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had not applied his mind on t .....

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uate inquiry . If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of lack of inquiry , that such a course of action would be open . 16. In the case of Gee Vee Enterprise vs. Commissioner of Income Tax reported in 99 ITR page 375, the Hon ble court has expounded the approach of ld. Assessing Officer while passing assessment ord .....

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of the Income-tax Officer is very diffident from that of a civil court. The statement made in a pleading proved by the minimum amount of evidence may be adopted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives decision on the basis of the pleading and evidence which comes before it. The Income-tax Officer is not only on adjudicator but also an investigator. He cannot remain passive in the face of the return which is apparently in order but called for .....

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there is anything wrong with the order if all the facts stated therein are assumed to be correct. 17. In the light of the above, let us examine the facts of the present case. As far as the first proposition of assessee is concerned, the ld.AO has duly called for details and examined the record. We deem it pertinent to take note of the show cause notice issued by the AO. It reads as under: Date : 9 August, 2012 The Principal Officer JAY AGRICULTURE & HORTICULTURE PRODUCTS P.LTD. AMBUJA TOWER .....

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-11 relevant to F.Y. 2009-10. (a) Copy of Capital Account, Balance Sheet, Profit and Loss Account etc. along with Audit Report (if applicable) along with its enclosures. (b) Copy of return of income. (c) Statement of Total Income. (d) Complete details of all the bank accounts maintained by the assessee, viz. the Account No., Name and addresses of the bank, along with the Dr./Cr. Balances as on 31.03.2010. (e) Details of immovable/movable property held by you with supporting evidences. (f) Direct .....

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, if any. 3. The case is fixed for hearing on 22.8.2012 at 1.00, PM. You are requested to submit all the same date. I am also enclosing a notice u/s 142(1) of the IT Act, notice u/s 143(2) of the IT Act dated 5.9.2011 and you are requested to submit any details/explanations/evidences which you want to product in support of various claimed by you in the R/I filed on the same date. Kindly note this is time barring case and hence no adjournment will be granted. In case of non/partial compliance of .....

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es@yahoo.co.in - 22-10-2012 To, The Income Tax Officer Ward 4(2), 1st Floor, Navjivan Trust Bhavan, Ahmedabad. Dear Sir, Sub: Submission in response to your notice U/s. 142(1) of the Act for A.Y.2010-11 Reg: Jay Agriculture and Horticulture Products Pvt. Ltd. PAN: AABCJ6890M Kindly refer to our submissions regarding general information, in continuation to the same, the following submissions with regard buyback of shares by Royal Export Limited (REL), Sri Lanka. The REL allotted 2083580 shares ea .....

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19. Apart from the above, the assessee has filed computation of income, profit & loss account etc. The assessee has further filed details before the ld.Commissioner exhibiting the purchase of shares, sale of shares, approval for the Board of Investment of Sri Lanka, as discernible from the index reproduced above. The ld.commissioner, has not recorded a firm conclusion as to how it can be demonstrated that the AO has not examined the record. The observations of the Hon ble Delhi High Court in .....

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he order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and .....

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question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT [see CIT vs. Shree Manjunathesware Packing Products, 231 ITR 53 (SC)]. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 20. On due consideration of these facts, we are of the view that the AO has examined the issue, though not discussed elaborately in the assessme .....

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assessee. It is pertinent to take note of Article 13 (4) and (5) of the DTAA between India and Sri Lanka. It reads as under: ARTICLE-13 ….. 4. Gains from the alienation of shares of the capital stock of a company the property of which consists \i directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State. 5. Gains from the alienation of shares other than those mentioned in paragraph 4 in a company which is a | resident of a Contract .....

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be taxable in Sri Lanka and if gain is to be taxed in Sri Lanka, then that will not be taxed in India as per the DTAA. Thus, even after setting aside the issue to the AO, the result will be same i.e. gain will not be taxed in India. The Hon ble Karnataka High Court in the case of D.G. Gopala Gowda (supra) had an occasion to examine similar aspect, i.e. if after exercise of power u/s.263, no taxable income is unearthed in the hands of the assessee, then, action u/s.263 should not be upheld. The .....

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e funds provided by the purchaser. On 22-11-2000 the assessee executed a sale deed in favour of the purchaser for a consideration of ₹ 1,38,00,000/-. The assessee received a sum of ₹ 40,00,000/- at the time of agreement. The total cost of construction was ₹ 1,04,30,425/-. Thereafter, the assessee purchased another property at Koramangala. The Assessing Officer computed the income from the long term capital gains at ₹ 22,17,940/- for the sale of the property. However, the .....

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de the order of assessment on the ground that it is prejudicial to the interest of the revenue. Aggrieved by the said order, the assessee preferred an appeal to the Tribunal. The Tribunal went into the factual aspects and took note of the legal position as settled in various judgments of the courts and in fact, calculated both the short term and long term capital gain and then found that the assessee is not liable to pay any tax. Therefore, it recorded the finding that even if the order of the A .....

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to be refunded to the assessee is not the amount, which is lawfully due to the Revenue at all, it was an amount which is Revenue legitimately should have refunded if only the claim had been in the return enclosing the certificates under Section 203. the said amount should have been refunded to the assessee. Because he was handicapped by such certificates not being forwarded to him, consequently not able to make the claim, such a claim was not made. The moment he got possession of those certifica .....

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not confer jurisdiction to exercise revisional power under Section 263 of the Act. We have gone through the order passed by the revisional authority. It is a very cryptic order. It neither points out an error nor prejudice which has caused to the revenue. After declaring that the order is prejudicial, it refers to the notice being issued to the assessee and the assessee filing reply to the said notice and then review authority feels that it is a matter to be readjudicated by the Assessing Autho .....

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conditions are set out in the order, then it is open to the revisional authority to consider the case on merits and pass final order or in its view, requires some adjudication or enquiry, the matter can be remanded to Assessing Authority. But such remand should be only after setting out the facts which show erroneous nature of the order and the consequential prejudice to the revenue which confer jurisdiction on the revisional authority. Seen from that angle, in the impugned order though we coul .....

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e Assessing Officer is prejudicial to the interest of the revenue. That aspect has not been considered and there is no reference to that aspect in the entire order passed by the revisional authority and by a cryptic order, the matter is remanded to the Assessing Authority. Though the Tribunal was not expected to go into the merits of the case, in order to demonstrate that the order passed by the Assessing Authority even if it is erroneous, is not prejudicial to the interest of the revenue, they .....

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ue. If any one condition is lacking, then action u/s 263 would not be justified. In the above case, the assessment order was erroneous because the learned Assessing Officer failed to compute the long term capital gain and short term capital gain separately. But the Tribunal ultimately arrived at a conclusion that even if this exercise is being done, then there will not be any tax liability and therefore, there is no need to set aside the assessment order. The Hon'ble High Court has upheld th .....

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ted the income disclosed by the assessee. After perusal of the record, the ld.Commissioner harboured a belief that the AO has not conducted adequate inquiry, therefore, he took cognizance under section 263 of the Income Tax Act on 11.12.2014. The contents of the notice issued by the ld.Commissioner read as under: OFFICE OF THE COMMISSIONER OF INCOME-TAX, AHMEDABAD-2 1st Floor, Navjeevan Trust Building B/h. Gujarat Vidyapith, Ahmedabad 380 014. No.CIT-2/ABD/Tech/263/20/2014-15 Date :11th December .....

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was incorporated with the object of construction and acquiring and its related incidental and ancillary activities. The assessee company was intended to perform "instruction business. But, during this year under consideration, the assessee company had not performed any business activity. During the period under consideration, it has only rent income of ₹ 15,97,860/-from other income of ₹ 9.097/-, As assessee was having only rent income and income from other sources, after allow .....

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nor furnished by you during the course of assessment proceedings which shows that the Assessing Officer while finalizing the assessment proceedings has not applied the relevant and correct provisions of law which has resulted in the under assessment of income. 4. In light of the above, the assessment order finalized on 31/10/2012 is considered to be erroneous to the extent it is prejudicial to the interest of revenue. Hence the said assessment order is proposed to be set aside for fresh assessm .....

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issions, if any. on the said date. 25. With the assistance of the ld. representative, we have gone through the record. In the light of the position of law, we have discussed in the aforegoing paragraphs, while disposing of the appeal being ITA No.605/Ahd/2015. Let us examine the facts of the present case. 26. Notice issued by the ld.AO on 9.8.2012 is available at page no.96 of the paper book, which reads as under: Date : 9 August, 2012 The Principal Officer JAY INFRA & PROPERTIES P.LTD. AMBU .....

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.Y. 2010-11 relevant to F.Y. 2009-10. (a) Copy of Capital Account, Balance Sheet, Profit and Loss Account etc. along with Audit Report (if applicable) along with its enclosures. (b) Copy of return of income. (c) Statement of Total Income. (d) Complete details of all the bank accounts maintained by the assessee, viz. the Account No., Name and addresses of the bank, along with the Dr./Cr. Balances as on 31.03.2010. (e) Details of immovable/movable property held by you with supporting evidences. (f .....

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greement, if any. 3. The case is fixed for hearing on 23.8.2012 at 11.00, AM. You are requested to submit all the same date. I am also enclosing a notice u/s 142(1) of the IT Act, notice u/s 143(2) of the IT Act dated 5.9.2011 and you are requested to submit any details/explanations/evidences which you want to product in support of various claimed by you in the R/I filed on the same date. Kindly note this is time barring case and hence no adjournment will be granted. In case of non/partial compl .....

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