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Rukmini (Koel) Mal lick Versus Commissioner of Income Tax-XX Kolkata

2016 (3) TMI 747 - ITAT KOLKATA

Revision u/s 263 - CIT(A) directing the assessing officer to carry out enquiry and investigation on the line suggested in the order u/s. 263 and compute the total income accordingly - Held that:- Regarding the issue of survey folder it was the duty the AO to consider the information gathered during the time of survey. Now the question arises whether the information at therein was relevant or not. It was also observed that the order of the ld. CIT is also silent whether the order is erroneous and .....

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has applied his mind or not need not necessarily be determined from what has been stated in the assessment order alone, it has to be examined as to whether any inquiry was at all conducted by the AO. There exists a difference between lack of inquiry and inadequate inquiry. If there were any inquiry, even inadequate that would not give an occasion to exercise jurisdiction u/s 263 of the Act. In view of above facts and circumstances and the decision of Hon’ble Delhi High Court above cited case law .....

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ee is against the order of Commissioner of Income Tax, XX, Kolkata in appeal No.CIT-XX/Kol/Revenue.u/s263/2013- 14/5964 dated 31.03.2014. Assessment was framed by DCIT, Circle-55 Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 23.12.2011 for assessment year 2009-10. Ground raised by assessee is below:- 1. For that on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax erred both on facts and in law in direct .....

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ld. CIT erred in treating the order of the AO erroneous in so far as prejudicial to the interest of Revenue and directing the AO to carry out the enquiry and investigation as suggested in the order passed under section 263 of the Act. 2.1 The facts of the case are that the assessee in the present case is an individual and is a cine artist. The AO framed the assessment for the year under consideration under section 143(3) of the Act after making certain addition to the total income of the assesse .....

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o the above losses cannot be treated as business losses therefore set off with the professional income is not possible. In response to the notice under section 263 of the Act it was submitted that the assessee has made investment and traded in various type of stocks. In support of his claim the assessee has submitted its ledger copy in the books of Share Khan Group besides other documents which is placed on record. However the assessee failed to produce the De-mat account copy in spite of severa .....

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t of the assessee as a result of survey. There is no mentioned about the tax evasion detected during survey. Besides no survey folder was made available during the proceedings under section 263 of the Act. However the Ld. CIT disregarded the submission of the assessee and held the order of AO is erroneous and prejudicial to the interest of Revenue and restored the file to the AO with the direction to carry out enquiry and investigation on the above listed issues and compute total income accordin .....

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fore us that the assessee has also shown the activity from future and option in the immediate preceding assessment year 2008-09 and the same has been accepted as business activity. The ld. AR also submitted that the issue of loss from future and option has duly been investigated by the AO. In support of this our attention was drawn to page 13 of the paper book where the requisition under section 142(1) for seeking the details of the future and option transaction was placed. Similarly regarding t .....

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t of Revenue as the AO failed to consider certain issues at the time of assessment. However from the submission of the assessee we find that all the issues raised in the order under section 263 of the Act were duly considered by the AO. Now to arrive at the correct conclusion of the case, we deem it necessary to reproduce the relevant provisions of section 263 of the Act. (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order .....

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section 263(1) can be summarized in the following points:-: 1) The commissioner may call for an examine the record of any proceeding under the Act; 2) If he considers that the order passed by the AO is (i) Erroneous; and (ii) Is prejudicial to the interest of Revenue; 3) He has to give an opportunity of hearing in this respect to the assessee; and 4) He has to make or cause to make such enquiry as he deems necessary; 5) He may pass such order thereon as the circumstances of the case justify incl .....

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: 9. You are requested to furnish details of i) Loss on sale of share with all supporting papers and ii) Loss A/c future option share with all supporting documents stating a) Opening Balance stating name of shares/future option b) Purchase value with dates c) Sales value with dates d) Dividend received e) Closing balance in both the cases. The reply of the assessee is placed on page 16 of the paper book which is reproduced below : Loss on Future Option As per Income Tax Act Profit & Loss fr .....

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ecifies the expression eligible transaction and recognized stock exchange. Assessee sends herewith a statement showing loss on future option trading and the contract notes of Sharekhan Ltd. in respect of those future and option segment of NSE showing Timed Stamped Contract note issued by the broker and traded through national Stock Exchange. National Stock Exchange of India has been recognized for transaction I respect of eligible transaction vide Notification No. SO89(E) dated 25-1- 2006. Time .....

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ormat: Sl.No. Partic ulars Open ing Bala nce Durat ion of Depo sits Rate of Int. Accrued int. As on 31.03.0 8 Accru ed Int. As on 31.03. 09 Additi on Durin g the AY 09-10 Durat ion of Depo sits Rate of Int.1 Accru ed Int. As on 31.03 .09 Less Matur ed Net Total as on 31.03. 09 The reply of the assessee is placed on page 18 of the paper book which is reproduced below : Accrued Interest on Fixed Deposit A fixed deposit was made for ₹ 7,00,000/- (1,00,000 x 7) with Indian bank on 5-3-07. Agai .....

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excess of eligible deduction. The position stands as under:- Received on maturity on 17-7-2008 Rs.7,64,603/- Less: Principle amount Rs.7,00,000/- Gross interest received ₹ 64,603/- Less: Interest already taxed on accrual basis Asst. year 2007-08 4,100/- 2008-09 54,750/- ₹ 58,850/- To be taxed in the relevant Asstt. Year ₹ 5,753/- Copy of the Balance Sheet and computation of income for assessment year 2007-08 & 2008-09 are enclosed. Regarding the issue of survey folder it wa .....

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