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TMI Blog2014 (1) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... e a view different from the one taken by the Assessing Officer. b) On the facts of the case and in Law, the learned ClT has erred in presuming that the Assessing Officer accepted Long Term Capital Gain on Sale of Shares of Prraneta Industries Ltd. without inquiry by disregarding the fact that all the details like statement of purchase & sales, demat account, broker ledger, investment of sales proceeds, bank statements. details of listing. no. of shares purchased and sold, name; address and PA of brokers, contract notes & form 10 DB were duly furnished to the Assessing Officer. c) On the facts of the case and in Law. the learned ClT has erred in presuming that the Assessing Officer accepted Short Term Capital Gain on Sale of Shares of Hiren Orgochem Ltd. without inquiry by disregarding the fact that all the details like statement of purchase & sales, demat account, broker ledger, investment of sales proceeds, bank statements, details of listing. no. of shares purchased and sold, name; address and PAN of brokers, contract notes & form 10 DB were duly furnished to the Assessing Officer. d) On the facts of the case and in Law, the learned ClT has erred in disregarding the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere listed in the stock exchange from 2005-06 to 2006-07. He also directed the AO to examine the genuineness of the transaction with the stock broker. 3.2 With regard to second transaction, which relates to Hiren Orgochem, learned CIT found that the shares have been appreciated almost 7 times over the period of 4 months for Rs. 14,28,297/- and directed the AO to examine the transactions on the similar lines as per directions given with regard to the transactions of shares of Prraneta Industries. 3.3 In this manner, learned CIT has treated the assessment order as erroneous and prejudice to the interest of Revenue and directed the AO to redo the assessment after giving opportunity of being heard to the assessee. 4. Learned AR submitted that the assessment proceeding in the present case was started with notice issued by the AO for scrutiny, which is dated 20-7-2007, copy of which has been placed at page 22 in the paper book. Vide letter dated 3-9-2007, the assessee requested to issue questionnaire, copy of which has been placed at page 23 of the paper book. Accordingly, the AO issued notice to the assessee, which is dated 10-10-2007, copy of which has been placed at page 24 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to the interest of Revenue. Therefore, it was submitted that Section 263 has wrongly been invoked by the learned CIT. Learned AR relied upon the following decisions to support his following contentions :- A. To invoke Section 263, the assessment order passed by the AO should be erroneous as well as prejudice to the interest of Revenue and both the conditions must co-exist : i) 243 ITR 83 (SC) (Malabar Industrial Co. Ltd. Vs. CIT); ii) 203 ITR 108 (93) (CIT Vs. Gabrial India Ltd.); iii) 163 ITR 129(97) (Venkata Krishna Rice Co. Vs. CIT); B. In a case where the AO had undertaken the required investigation in allowing the claim for deduction under Section 80M and the assessee had produced material to show that the dividend in question had suffered dividend tax within the meaning of S.115-O, the CIT erred in exercising his revision powers to reverse the order passed by the AO : i) 31 SOT 278 (2009) (Neelam Mercantile (P) Ltd. Vs. ITO); ii) 21 SOT 111(2008) (ECD Electronics & Electrolysis Pvt. Ltd. Vs. CIT); iii) 108 ITD 321 (2007) (Habibullah Khanyari Vs DCIT); iv) 86 TTJ 1095 (Mrs. Khatiza S. Oommerbhoy Vs. ITO); v) 16 SOT 119 (Girdhari Lal B. Rohra Vs. CIT); vi) 50 TTJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered. We have carefully gone through the assessment order in which there is no discussion regarding the issue relating to sale and purchase of shares. However, from the letters issued by the AO, which have been discussed in the above part of this order, it is clear that a detailed examination has been done by the AO regarding transactions of sale & purchase of shares entered into by the assessee. Investigation in this regard was started vide notice dated 10-10-2007. Thereafter, on various dates, he was requiring the assessee to submit various details. In the letters submitted by the assessee to the AO, the details are submitted as per requirement of the AO. The correspondences entered into between the assessee and the AO, clearly reveal that the AO required the assessee to file various details, which were filed by the assessee. So far as it relates to share purchased by the assessee from Prraneta Industries, the assessee has filed the proof of purchases in the shape of ledger account in the name of DPS Shares Securities Pvt. Ltd. Copy of this ledger account has been placed at page 29 of the paper book. The assessee also submitted copy of physical shares of Prraneta Lease and Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, hence, it cannot be said that either the AO did not enquire about the issue of capital gain arising out of sale & purchase of shares or assessee did not furnish required information. The transactions are duly supported by the bills issued by the broker and are through stock exchange for which appropriate evidences were submitted. 10. In view of the above facts, it can be observed that Section 263 has been invoked only for the reason that the AO did not apply his mind on these transactions. This finding of the learned CIT is against the correspondence and evidences which are placed on record by the assessee during the course of original assessment proceedings and copy of these documents are also filed before us. 11. Learned CIT also could not specify any discrepancy either in the rates of shares purchased and sold by the assessee or any incorrectness in the claim of the assessee regarding capital gain shown by the assessee as all the facts were again placed before him. In absence of any material to suggest that these transactions were not valid/genuine transactions, it will mere be a case of a change of opinion by the learned CIT. On the basis of information submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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