TMI Blog2018 (2) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ission and laconic dismissal of the plea by the learned CIT-A is not sustainable. Accordingly, remit the issue the file of learned CIT-A. Learned CIT-A is directed to consider the issue afresh keeping into account our observations as above and after giving the assessee proper opportunity of being heard. - Appeal by the assessee stands allowed for statistical purposes. - I.T.A. No. 4715/Mum/2017 - - - Dated:- 5-2-2018 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER For The Appellant : Shri Sanjay C. Shah For The Respondent : Ms. N. Hemalatha ORDER Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 05.05.2017 and pertains to the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h mistake which has been brought to its notice by the assessee or by the deductor or by the collector, and where the authority concerned is the Commissioner (Appeals), by the Assessing Officer also. (3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee or the deductor or the collector], shall not be made under this section unless the authority concerned has given notice to the assessee or the deductor or the collector of its intention so to do and has allowed the assessee or the deductor or the collector a reasonable opportunity of being heard. (4) Where an amendment is made under this section, an order shall be passed in writing by the income-tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to allow the claim. 4. Before the learned CIT-A, the assessee submitted as under: 1. The learned Jt. Ld. Commissioner of Income Tax (OSD)-4(3), Mumbai, has erred in passing order u/s. 154 of the Income Tax Act, 1961 levying tax @ 30% on Short Term Capital Gain of ₹ 3,47,979/- instead of levying tax @ 10% u/s. 111A. The facts of the case are as follows: The Profit Loss account for the year ended 31st March, 2005 of the appellant shows an amount of ₹ 3,47,979/- under the head capital gains. A copy of the annual accounts is attached herewith for your ready reference. The computation of income of the appellant for A.Y. 2005-06 shows the entire amount of capital gains of ₹ 3,47,979/- under the head Short Ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions for sale of shares. In view of the above, and taking the facts and circumstances of the case into consdieraiton, the tax levied @ 30% be deleted and the short term capital gains u/s. 111A be taxed @ 10%. 5. Considering the above, the ld. Commissioner of Income Tax (Appeals) reproduced the assessing officer's order u/s. 154 and dismissed the assessee s plea by observing as under: It is found that during 154/155 proceedings, the assessee did not file any reply with the A.O. Therefore, after verification of record for A.Y. 2005-06, the A.O. proceeded to rectify the previous order of 143(3). The appellant has not made any application for filing any additional evidence under rule 46A of the I. T. Rule 1962. Therefore, keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :-10th Aug 2009 (copy enclosed) cannot be said to be Notice u/s 154(3) of the Act as there is no mention about particulars of mistake proposed to be rectified. Hence the said notice is bad in law. 2. On 30th Mar 2012, Appellant again received a notice u/s 154 of the Act dated NIL (copy enclosed) from the office of DCIT (OSD) 4(3) asking appellant to appear in person on 26th Mar 2012. Order passed u/s 154 is dated 26th March 2012 (copy enclosed) which is before the date of service of notice. In other words, notice was received after the date of appointment specified in the notice making the notice infructuous and bad in law. 3. The issue rectified by passing an Order u/s 154 of the Act required examination of fresh material which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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