9911796707
TMI Blog2018 (4) TMI 1947X X X X Extracts X X X X X X X X Extracts X X X X ..... s) erred in confirming the validity of the Order passed by the assessing Officer u/s 154 of the Income Tax Act. 2. He failed to appreciate that: a) The order under section 154 was not signed by the assessing officer and was not a valid order. b) The notice under section 154 was served on the appellant after the date of the order under section 154. c) Copy of the remand report was not given to the appellant. d) No reasonable opportunity of being heard was given by the Assessing Officer and the Commissioner of Income Tax (Appeals) to the appellant. e) Disallowance of rebate u/s 88E on some items is not a matter of adjustment allowed u/s 154. f) The order under section 154 was invalid and without jurisdiction. 3. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts in brief are that the assessee filed the return of income on 22.11.2006 declaring income of Rs.1,18,95,712/-. The case of the assessee was selected for scrutiny and notices under section 143(3) and 143(2) of the Act were duly issued and served upon the assessee. The assessee was engaged in the business of share trading and has earned income by way of share trading profit and short term capital gain etc. The income of the assessee during the year comprised of brokerage income of Rs.5,80,242/- , share trading profit Rs. 2,10,58,009/- and short term capital gain on share of Rs.6,79,160/-. The assessment was completed vide order dated 16.09.08 passed under section 143(3) of the Act by assessing the income of Rs.1,25,79,870/- by making var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is engaged in the business of share trading and brokerage business and during the year derived income by way of share brokerage of Rs.5,80,242/-, share trading profit of Rs.2,10,58,009/- and short term capital gain of Rs.6,79,160/-. The Ld. A.R. invited our attention to statement of total income of the assessee for the year containing details of incomes derived during the year from the business and capital gain as filed at page No.17 of the paper book. The ld counsel also invited our attention to security transaction tax paid during the year of Rs.45,18,667/- and rebate claimed to the tune of Rs.35,68,713/- which was claimed only to the extent of tax on the income of the assessee other than the short term capital gain. Thus, the Ld. A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities. During the year, the assessee derived income by way of brokerage of Rs.5,80,242/-, share trading profit of Rs.2,10,58,009/- and short term capital gain of Rs.6,79,160/-. The assessment was framed by order dated 16.09.08 passed under section 143(3) assessing the income of Rs.1,25,79,870/-. The AO, thereafter, noticed that there are certain items of incomes which were credited in the profit and loss account which are narrated as under: Particulars Amount (In Rs.) Brokerage Income 5,80,242 Interest 2,87,319 Other Income 29,019 Short term capital gain 6,79,160 Total 15,75,740 According to the AO, the assessee has paid security transaction tax to the tune of Rs.45,18,667/- and has claimed deduction under section 88E in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs.35,68,713/-as against the actual STT paid of Rs.45,18,667/-. Under these facts and circumstances, we are of the view that the order passed by Ld. CIT(A) upholding the order passed by AO under section 154 of the Act is wrong and can not be sustained. We accordingly set aside the order of Ld. CIT(A). The order passed by the AO under section 154 of the Act is also wrong and is quashed as the issue involved is debatable and could not be subject matter of the rectification proceedings. There is no need to decide the issue on merit as we have adjudicated the technical issue in favour of the assessee.
9. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 10.04.2018. X X X X Extracts X X X X X X X X Extracts X X X X
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