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TMI Blog2023 (9) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.08.2016 passed by ld. Assessing Officer(hereinafter called "the AO") u/s 154 of the Income-tax Act, 1961. 2. The assessee has raised following grounds of appeal in Memo of Appeal filed with Income Tax Appellate Tribunal, Allahabad, which reads as under:- "1. BECAUSE the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in dismissing the appeal filed against order dated 04.08.2016 passed under section 154 of the Income Tax Act, 1961 on the ground that, the appellant has not accepted the assessment order and filed an appeal against the order sought to be rectified, therefore he cannot ask for rectification of assessment order, hence the AO has rightly dismissed the rectification request. 2. BECAUSE the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s long term capital gains, vide reassessment order dated 31.03.2016 passed u/s 143(3) read with Section 148 of 4. The assessee filed rectification application under section 154 of the Act, which was dismissed by AO vide rectification order dated 4.8.2016 passed u/s 154, by holding as under:- "In this case, the assessee has filed an application u/s 154 of I.T. Act, 1961 stating therein that the income arising from transfer of equity shares are not liable to be included to the total income of the assessee and requested to rectify the order passed u/s 148/143(3) dated 31.03.2016. Aggrieved from the order passed u/s 143(3) of 1.T. Act, 1961, the assessee filed an appeal before the C.I.T.(A) vide receipt no 000062 dated 26/04/2016 which is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee filed second appeal before the Tribunal. At the outset, learned counsel for the assessee submitted that appeal against the reassessment order under section 143(3) / 148 is still pending with ld. CIT(A). It was further stated that this appeal has arisen from appellate order passed by ld. CIT(A), dated 27.09.2022 which has arisen from rectification order under Section 154 r.w.s. 148/143(3) of the Act. The main grievance of the assessee is that it has earned long term capital gain of Rs. 39,67,163/- from the sale of shares which has been brought to tax by the AO, and as per ld. counsel for the assessee, the same ought not to have been taxed because the said income is exempt under section 10(38) of the Act. The ld. Sr. DR, on the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption, and hence the onus is on the assessee to prove that she has earned long term capital gains on sale of shares, and she meets all the conditions for claiming exemption. Thus, the matter is restored back to the file of AO for fresh consideration of the entire issue denovo. Section 10(38) clearly lays down conditions for exemption, and if the assessee fulfills all the conditions, then the assessee is entitled for exemption on submission of relevant evidences, and it does not requires long drawn reasoning, and hence it could not be said that the issue cannot be adjudicated u/s 154. Thus, the appeal of the assessee is allowed for statistical purposes. We order accordingly. 8. In the result, appeal of the assessee is allowed for stati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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