Tarun Agarwala, Dr. Satish Chandra, JJ. - (1.) BOTH the cross appeals have been filed against the order dated 5 March 2010 passed by the Income Tax Appellate Tribunal, Lucknow in I.T.A. No. 499/LUC/2094 for the assessment year 2006 -07.
(2.) ON 22.01.2013, a coordinate Bench has admitted the appeal filed by the Department -appellant (ITA 467 of 2010) on the following substantial questions of law: "(a) Whether the ITAT was correct in law in canceling the assessment framed u/s. 143(3)/147 on account of validity of notice u/s. 143(2) in absence of any return, ignoring the fact that the assessee himself had offered in writing for treating one of its earlier returns to be in response to notice u/s. 148 of the Income Tax Act, 1961? (b) Whether the ITAT was correct in law in holding that no capital gain accrued or arose to the assessee in A.Y. 2006 -07 as the transfer did not take place on 30.04.2005 without properly appreciating the facts narrated by the A.O. which wee clearly born out from records - The brief facts of the case are that the assessee is an individual and running Excel Hospital Limited. On 13.09.2007, a survey, under Section 133(A) was carried out at the business premises of the assessee. The assessee was examined under Section 131 of the Act as per notice dated 22.09.2007 and his submissions were recorded on 03.08.2007. The assessee was served with a notice under Section 148 on 20.03.2008. In response, the assessee has furnished the necessary documents. On 11.7.2008, the A.O. has intimated the assessee about the reasons recorded for initiating the proceedings under Section 148 of the Act. Finally, on 22.12.2008, the assessment was completed under Section 143(3)/147 of the Act where the capital gain was levied.
(3.) THE assessee has assailed the assessment order pertaining to the capital gain in an appeal before the CIT(A), which was dismissed. Being aggrieved, the assessee filed an appeal before the Tribunal, who has granted the relief by observing that capital gain is not chargeable for the assessment year under consideration. Being not satisfied, the Department has filed the appeal. The assessee has also filed the cross appeal to assail the validity of the proceedings under Section 147 of the Act.;