2021 (11) TMI 1191 - AT - Income Tax

Revision u/s 263 by CIT - As per CIT assessee had claimed exemption of long term capital gains u/s 10(38) on sale of certain shares which according to department was a penny stock and such claim therefore accepted in the assessment without proper enquiry - as per assessee assessment proceedings in the case of the assessee was originally completed u/s 143(3)/153A and had to be confined to material found as a consequence of search, and no material was found to suggest that the long term capital gain was not genuine - HELD THAT - Every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interests of the Revenue. When AO adopted one of the courses permissible in law and it has resulted in loss of Revenue or where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is unsustainable in law. In the present case, it cannot be said due enquiry was not made. After making enquiry the decision has been taken, which also cannot be said to be erroneous or prejudicial to the interest of revenue. Even in the order of 263, nothing material has been indicated to show that the order was erroneous. Assessment order is not required to give a detailed reason in respect of each and every item of exemption or deduction, etc and that if there was an inquiry, even inadequate that would not by itself give occasion to the CIT to pass orders u/s 263 merely because he has a different opinion in the matter. In Gabriel India Ltd 1993 (4) TMI 55 - BOMBAY HIGH COURT as held that a consideration of the CIT as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the CIT acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. To invoke suo motu revisional powers to reopen a concluded assessment under s. 263, the CIT must give reasons; that a bare reiteration by him that the order of the ITO is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the ITO was not only erroneous but was prejudicial to the interests of the Revenue. The CIT cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded. In the present case, complete details of purchase of shares and sale of shares is verifiable form the bank statement, and also from the borkers note. The shares are held for long period of time, and there is no material to suggest that such gain is not genuine. There is only a suspicion, and on the basis of such facts, the revisional proceedings initiated are not justified. Hence, we quash the proceedings initiated U/s 263 - Decided in favour of assessee.

Summary

Issues involved:
1. Jurisdiction of invoking Section 263 against the order passed under Section 153(A) r.w.s. 143(3).
2. Treatment of long term capital gains claimed to be exempt under Section 10(38) as taxable income.
3. Justification of revision jurisdiction exercised by the Principal CIT under Section 263.

Issue 1: Jurisdiction of invoking Section 263:
The appeal challenged the invocation of Section 263 against the order passed under Section 153(A) r.w.s. 143(3). The assessee argued that the order made under Section 153(A) was not erroneous or prejudicial to the interest of revenue. The contention was that the assessment was completed after detailed examination, and no material was found to suggest that the long term capital gain was not genuine. The appellant provided complete details during the assessment proceedings, including ledger extracts, broker notes, and bank statements. The shares in question were still actively traded on the stock exchange. The Tribunal emphasized that the CIT must be satisfied that the AO's order is both erroneous and prejudicial to the revenue's interests to invoke Section 263. In this case, the Tribunal found that due enquiry was conducted, and the decision was not erroneous or prejudicial to revenue. The assessment order was not required to provide detailed reasons for each item, and the initiation of proceedings by the CIT without proper material was deemed illegal. Consequently, the Tribunal quashed the proceedings initiated under Section 263.

Issue 2: Treatment of long term capital gains:
The Principal CIT set aside the assessment to examine the exemption claimed under Section 10(38) for long term capital gains on shares of a company considered a penny stock. The assessee contended that all necessary details were submitted during the assessment, and the gains were genuine. The shares were purchased through banking channels and sold with proper documentation. The Tribunal noted that complete details of share transactions were verifiable from bank statements and broker notes. As there was no concrete evidence to suggest the gains were not genuine, the revisional proceedings initiated under Section 263 were deemed unjustified. The Tribunal held that mere suspicion without substantial evidence did not warrant revising the assessment. Consequently, the proceedings under Section 263 were quashed, and the appeal of the assessee was allowed.

Issue 3: Revision jurisdiction exercised by Principal CIT:
The Tribunal analyzed the revision jurisdiction exercised by the Principal CIT under Section 263. It referenced legal precedents emphasizing that the CIT must have valid reasons based on material on record to conclude that the AO's order was erroneous and prejudicial to revenue. The Tribunal highlighted that the CIT cannot initiate proceedings without substantial reasons and cannot conduct fishing expeditions in concluded matters. In this case, the Tribunal found that the assessment was based on proper verification and documentation, and the decision was not erroneous or prejudicial to revenue. The Tribunal concluded that the revisional proceedings initiated were not justified, and therefore, quashed the proceedings under Section 263.