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2015 (10) TMI 2367 - ITAT HYDERABADRevision u/s 263 - listed securities of which sales was made by Assessee has suffered security transaction tax and therefore, the provisions of section 10(38) of the IT Act is squarely applicable and the income generated from sale and purchase of securities being long term capital asset is exempted - Held that:- The application of section 10(38) will warrant, only when the transaction had suffered STT. In the present case, the contention of assessee has been that transaction has not suffered any STT, we observe that ld. CIT ought to have enquired with the AO since all the material facts are very much available on assessment records. We have carefully considered the contention of ld. DR that the listed shares have to be transacted only through stock exchange. It is the businessman who will decide the mode of transaction, how it has to be done to his business exigencies. Particularly in the situation, where the shares value is not in favour of the assessee. The assessee has decided to deal directly with the counter part and closed the deal. We do not see anything contrary to any statute and the revenue has not doubted the genuineness of the transaction. Hence, the transaction is complete even without transacting through stock exchange. On perusal of the ratio laid down in case of Spectra Shares & Scrips (P) Ltd. (2013 (6) TMI 173 - ANDHRA PRADESH HIGH COURT), it is clear that the impugned order should be erroneous and prejudicial to the interests of revenue. We observe that the original assessment order was not erroneous as the material facts were already available on record of the AO. The AO has already dealt with the matters by carefully applying his mind and he has satisfied with his views. In the interest of justice, we have asked the ld. DR to verify the assessment file, whether the material facts like copy of agreements to sell and balance confirmation of the respective companies were available and considered by the AO before passing of the assessment order. It was observed that all the relevant papers were available as part of the assessment file. Hence, we conclude that ld. CIT has not enquired properly into the issue before coming to the conclusion that the assessment order was erroneous and prejudicial to the interests of revenue. Therefore, we quash the order of ld. CIT passed u/s 263 and restore the order of the AO - Decided in favour of assessee.
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