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TMI Blog2015 (10) TMI 2367X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection for the proposed revision of assessment. Accordingly, he treated the assessment order passed u/s 143(3) as erroneous and prejudicial to the interests of revenue and the assessment was modified to the effect that the loss claimed of ₹ 2,60,07,607 is ignored and taken at Nil. AO was directed accordingly. 5. Aggrieved by the order of ld. CIT(A), assessee is in appeal before us. 6. Ld. AR contended before us that the ld. CIT erred in directing the AO to modify the assessment by disallowing the long term capital loss claimed by assessee. Ld. AR submitted that ld. CIT ought to have appreciated the fact that transfer of equity shares are not from the recognized stock exchange, but, the assessee made agreement with the other company to sell the shares. As per the terms of agreement, it had sold the shares. The relevant agreements were already in the files of AO. The ld. CIT presumed that Security Transaction Tax (STT) was paid by the assessee whereas it was not. In fact, there was no STT involved as the transactions were made outside the stock exchange. The respective agreements were produced before the AO and were available as part of the assessment records. He also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h fund; and (ii) which has been set up under a scheme of a Mutual Fund specified under clause (23D) : Provided that the percentage of equity shareholding of the fund shall be computed with reference to the annual average of the monthly averages of the opening and closing figures; 8.1 The Hon ble Supreme Court in case of Malabar Industrial Co. Ltd vs. CIT (243 ITR 83) held as under: 9. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an ITO 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 Commissioner 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. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suo motu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. (e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted (f) Whether there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in case of Spectra Shares Scrips (P) Ltd. (supra), 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. 8.4 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. 9. 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. 10. In the result, assessee s appeal is allowed. Pronounced in the open court on 24th September, 2015. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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