TMI Blog2022 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption under section 10(38) cannot be equated with non-furnishing of particulars of income. There cannot be different yardsticks to determine whether the assessee has reported the transaction in her return of income in cases where the assessee has not claimed the exemption and in another case, where the assessee has claimed the exemption. The Revenue is well within its right to examine the claim of the exemption and whether the same has been rightly claimed or not and take appropriate action as per law however, as far as reporting of transaction is concerned, the same has been duly complied with by the assessee. Had the Assessing officer carried out basic enquiry and verification of the return of income before recording the reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumption of jurisdiction u/s. 148 by Ld. AO was in violation of mandatory jurisdictional conditions stipulated under the Act. 2. That on the facts and in the circumstances of the case and in law, Ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) without appreciating that assessment has been made without following law of natural justice. 3. That on the facts and in the circumstances of the case and in law, Ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) without appreciating addition made u/s. 68 is against law. 4. That on the facts and in the circumstances of the case and in law, Ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) without appreciating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to reopen the assessment u/s. 147 depends upon issuance of a valid notice and in absence of the same the entire proceedings initiated by him would become void for want of jurisdiction. It was submitted that in the instant case, the notice u/s. 148 was issued by ITO, Ward 6(2), Ludhiana wherein the assessment was completed by ITO, Ward 7(3), Ludhiana which cannot be sustained in the eyes of law and in support, reliance was placed on the following decisions: ACIT vs. Resham Petrotech Ltd. (2012) 136 ITD 185 (Ahd.) (Trib.) Smriti Kedia (Smt.) v. UOI (2012) 71 DTR 245/250 CTR 221 (Cal.) ITO v. Rajender Prasad Gupta (2010) 48 DTR 489 (JD) (Trib.) 5. It was further submitted that the notice u/s. 148 was issued on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid notice, the assessee has filed her return of income and therefore has duly complied to the said notice and thereafter, the jurisdiction has been transferred from ITO, Ward 6(2), Ludhiana to ITO, Ward 7(3), Ludhiana and the assessment was accordingly be completed by ITO, Ward 7(3), Ludhiana. It was submitted that where the assessee has duly participated in the reassessment proceedings and has not objected to the jurisdiction of the Assessing Officer, the assessee cannot be permitted to raise the jurisdiction issue during appellate proceedings before the Tribunal for the first time. 7. Regarding contention of the Ld. AR that the income from long term capital gains has been duly disclosed in the return of income, it was submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer is that the assessee is beneficiary of long term capital gains on sale of shares and there is a failure on part of the assessee to disclose his income on account of long term capital gains on sale of shares in her return of income and there is thus a failure on part of the assessee to disclose his income truly and fully. In this regard, we refer to the original return of income filed by the assessee on 5.08.2011 wherein under the column capital gains , no amount has been shown and thereafter, under the column details of exempt income which is not included in the total income under the heading long term capital gains from transactions on which securities Transaction tax is paid , the assessee has shown a figure of Rs. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll likelihood, he himself would have found the basis so stated as not emerging from the material on the record. Therefore, the belief and the reasoning so arrived at by the Assessing officer that the income has escaped assessment on account of failure on part of the assessee to truly and fully disclose the transaction has no material basis and cannot be sustained. The nexus between formation of belief and material basis which such belief is formed is clearly absent in the instant case and therefore, we are of the considered view that the notice issued under section 148 has no legal sanctity and cannot be sustained in the eyes of law and the same is hereby quashed and the consequent reassessment proceedings are thus set-aside. 9. In light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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