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TMI Blog2021 (12) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO responded defending his decision. Using the exact language, the show cause notice under sec 263 by Pr. CIT only on those two points in view of 296 ITR 238(P&H), 119 ITR 996 (SC) and 108 ITR 407 (Cal) is not justified. Use of section 263 in place of sec 147 or 154 is not correct. CIT has not answered this objection in order under appeal. 2. Rule of consistency be followed, if the facts are same. In earlier years in scrutiny assessments, the declared version was accepted for both the points. For no change in facts and law, it may not be disturbed. 3. The AO in his assessment order u/s 143(3) full details of shares purchase/sale/stock in value and quality with contract notes/ broker bills were filed and examined by the AO and he ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after directions u/s 263, the net income is going to be computed u/s 115 JB at same figure. Thus action u/s 263 is not justified and be cancelled. The case laws relied upon by learned Pr CIT are either not relevant on facts or general in nature which varies from case to case, the comment of non¬enquiry by AO is not factually correct, as enough evidence was collected by AO at assessment stage and he had applied his mind on both the points." 3. The assessee company is engaged in the business of renting, air processing, trading in securities and construction and development. The return of income for assessment year 2012-13 was filed on 27.9.2012 declaring total income of Rs. 78,58,058/-. The assessment u/s 143(3) was completed on 25.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been set out in the audit objection which was later on dropped by the department. Thus the order u/s 263 be quashed and set aside. As regards share application/share trading loss, the Ld. AR submitted that at the time of proceedings u/s 143(3), the Assessing Officer has made inquiry relating to the capital loss as per the books of accounts and raised specific query at point No. 20 of the questionnaire issued by the Assessing Officer. The Ld. AR further submitted that the trading in shares was regularly done by the assessee and the same was never doubted in the past by the Revenue. As regards receipt of DG set/AC charges, the same was also clearly set out in the profit and loss account and has been taken into account by the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in share trading" was debited for Rs. 6,49,429.32 under the head revenue from operation vide Note 15. The Pr. CIT observed that the loss shown was capital in nature and required to be adjusted with the capital gains only and thus, it should be allowed to be carried forward for future set off instead of adjusting with other heads of income. It was further observed that during the relevant previous year the assessee company derived income mostly from rent of the house property and some allied service receipts like AC Charges, DG set charges, glow sign board income, maintenance charges etc. The Pr. CIT concluded that the rent portion should have been taxed as income from house property as laid down in Section 22 & 23 after due allowance of ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as investment in shares as on 31.3.2011. Therefore, the assessee has given the details accordingly. In fact the assessee demonstrated that the assessee is dealing in share trading and the said income was offered as business income. Thus, at the time of assessment proceedings u/s 143(3) proper inquiry was conducted by the Assessing Officer. The Principal CIT has changed the nomenclature of the transactions in share from business income to income from other sources which is a second opinion and, further held that no inquiry was done. But the proper inquiry was conducted. In-fact the CIT has mentioned in Para 6 & 7 of the order that the nature of the transaction period of investment, source of funds, involvement of the assessee in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the objections/queries related to these incomes but has also taken cognizance of the evidences produced by the assessee. The Pr. CIT has also taken note that assessee has revealed composite rent from its clients for letting out houses and also for some allied services. But the Pr. CIT has not commented on the nature of the business and the offer of the assessee of the rental income as the business income and totally ignored the assessee's submission before the Assessing officer at the time of assessment proceedings u/s 143(3). Thus, the Pr. CIT cannot say that there was inadequate enquiry or no enquiry at all. The decision of the Hon'ble Apex Court relied by the Pr. CIT is not applicable in the present case. The Pr. CIT while passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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