2020 (11) TMI 813 - AT - Income Tax

Revision u/s 263 - Bogus LTCG - Suspicious sale transaction in shares and exempt long term capital gains shown in return (Penny Stock Tab in ITS) - HELD THAT - We find that the coordinate Bench of this Tribunal in the case of ITO vs. Shri Narayan Tatu Rane 2016 (5) TMI 1162 - ITAT MUMBAI , M/s. Arun Kumar Garg, HUF, 2019 (4) TMI 400 - ITAT DELHI have ruled that the Pr. CIT can not pass the order u/s 263 of the Act on the ground that thorough enquiry should have been made by the Assessing Officer. See DG HOUSING PROJECTS LTD 2012 (3) TMI 227 - DELHI HIGH COURT In the present case AO had given a specific notice regarding the disputed transactions and the assesseee also gave specific reply to the show cause notice issued by the assessing officer. Therefore, it is not a case where the assessing officer has not made any enquiry regarding impugned transactions but the Ld. Pr. CIT invoked the provisions of section 263 of the Act on the ground that the enquiry was not made in the manner, it ought to have been done. Ld. Pr. CIT himself ought to have made some enquiry regarding the impugned transactions before setting aside to the file of the assessing officer. Hence, the action of the Ld. Pr. CIT is contrary to the ratio laid down by the binding precedence. We, therefore, hold accordingly, impugned order is quashed. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the order passed under Section 263 of the Income Tax Act, 1961.
2. Whether the assessment order was erroneous and prejudicial to the interests of revenue.
3. Adequacy of inquiries conducted by the Assessing Officer (AO) regarding the genuineness of long-term capital gains from share transactions.

Detailed Analysis:

1. Validity of the Order Passed Under Section 263 of the Income Tax Act, 1961:
The appellant challenged the order passed by the Learned Principal Commissioner of Income Tax (Pr. CIT) under Section 263 of the Income Tax Act, 1961, arguing that the assessment order for the Assessment Year 2015-16 had already been concluded under Section 143(3) after proper inquiries and explanations. The appellant contended that the Pr. CIT failed to establish how the assessment order was erroneous and prejudicial to the interests of revenue, particularly when the AO had made complete inquiries. The appellant also argued that the Pr. CIT's order was based on a change of opinion, which is not permissible under the law.

2. Whether the Assessment Order Was Erroneous and Prejudicial to the Interests of Revenue:
The Pr. CIT found the assessment order to be erroneous and prejudicial to the interests of revenue, directing the AO to re-examine the issue of equity share transactions. The appellant argued that the AO had already conducted thorough inquiries and verifications regarding the share transactions and had accepted the long-term capital gains declared by the assessee as genuine. The appellant further contended that the Pr. CIT had not provided any new evidence or material to prove that the assessment order was erroneous. The appellant relied on various judicial pronouncements, including the judgment of the Hon'ble Supreme Court in the case of CIT vs. Malabar Industrial Co. Ltd. (2000) 243 ITR 83 (SC), which clarified that for an order to be revised under Section 263, it must be both erroneous and prejudicial to the interests of revenue.

3. Adequacy of Inquiries Conducted by the Assessing Officer:
The Pr. CIT's main contention was that the AO had not made proper inquiries into the genuineness of the long-term capital gains from the sale of shares of M/s Jackson Investment Ltd., which was detected to be a penny stock company. The appellant provided detailed responses to the AO's show cause notice, including evidence of the purchase and sale of shares, demat account statements, and other relevant documents. The appellant argued that the AO had issued a show cause notice specifically addressing the share transactions and had accepted the explanations provided by the assessee. The appellant cited various case laws to support the argument that the AO's inquiries were adequate and that the Pr. CIT's order was based on a mere change of opinion.

Conclusion:
The Tribunal found that the AO had indeed conducted specific inquiries regarding the share transactions and had accepted the assessee's explanations. The Tribunal held that the Pr. CIT had not conducted any independent inquiries to establish that the assessment order was erroneous and prejudicial to the interests of revenue. The Tribunal quashed the Pr. CIT's order passed under Section 263, stating that the Pr. CIT's action was contrary to the principles laid down in various judicial pronouncements. The appeal filed by the assessee was allowed, and the assessment order passed by the AO was restored.