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TMI Blog2021 (4) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeal was admitted on 23.07.2020 on the following substantial questions of law: "(i) Whether on the facts and in the circumstances of the case, the Tribunal was right in setting aside the order passed by the Assessing Officer for re-examination, especially when the Assessing Officer had duly examined the matter in great depth while framing the assessment order? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was right in remitting the issue back to the file of the Assessing Officer by quoting the decision in the case of Kanhaiyalal and Sons (HUF) in ITA.No. 1849/Chny/2014 wherein the onus has been shifted to the revenue with a direction that the Assessing Officer is to bring on record the role of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer, we find that a detailed enquiry had been conducted by the Assessing Officer after affording an opportunity to the assessee. The assessee availed the opportunity through written submissions. The assessee was represented by an authorized representative and thereafter a finding had been rendered. The said finding was tested for its correctness by the CIT(A), who approved the same by order dated 07.8.2018. 25. We refer to the following factual findings rendered by the CIT(A) while dismissing the appeal filed by the assessee : "2.1. .......In response to notices, the AR of the assessee Shri Omprakash Jain, B.Com, FCA of Om Jain & Associates, Chartered Accountants appeared and filed the details of purchase of 450 shares o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the details and the same was returned unserved by the postal authorities with remarks 'not known'. ...... Besides the above, the AR of the assessee has not furnished any documentary evidences with respect to the sale of shares of M/s.Bakra Pratisthan Limited. Instead, he furnished the bank account copy wherein on 03.1.2012, an amount of Rs. 9,50,714/- was credited in the bank with description 'RTGSINWFIX- FIT SECURITIES'. Considering the above fact, it is concluded as under : 2.4. The purchase of 450 shares of M/s.Dhanlabh Merchandise Limited is itself a sham transaction for the following reasons: 1. Based on the details filed by the AR of the assessee and the address was provided the assessee the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of 450 shares of M/s.Dhanlabh Merchandise Limited from M/s. Excellent Barter Private Limited by the assessee is itself a sham transaction. Accordingly, the documentary evidence furnished by the assessee towards purchase of shares of 4500 M/s.Bakra Pratisthan Limited is not a genuine one and hence, the claim of exemption under Section 10(38) towards selling of the same is not entertained. .... 7.11. It can be seen from the client statement of Shri Ashok Kumar Kayan that not only the assessee but the following members of the HUF family members have also invested in the said impugned shares : SNo Name PAN Amount 01 Karuna A Jain AGTPJ5140K 25,46,855 02 Abhishek Jain AEUPJ3242F 15,93,300 03 Abhishek M Jain HUF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preceding paragraphs. ...... 7.3.......However, in the present appeal, the appellant purchased the shares of M/s.Bakra Pratisthan Limited in off market. During the course of the hearing on 24.7.2018, the AR admitted that the assessee purchased the shares of M/s.Dhanlab Merchandise Limited in off market. ..... 7.4. These shares were purchased through off market and not through Stock Exchange. The notice under Section 133(6) dated 28.9.2017 sent by the Assessing Officer to M/s.Excellent Barter Private Limited from which the assessee had purchased the shares of M/s.Dhanlab Merchandise Limited was returned unserved with remark 'not known'. Moreover, the assessee did not bring any other material on record to establish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase where the Tribunal had failed to exercise its jurisdiction in the manner known to law. The Tribunal, being a last fact finding Authority, is under the legal obligation to record a correct finding of fact. It has been held in the cases of (i) M.R.M.Periyannan Chettiar Vs. CIT [reported in (1960) 39 ITR 159 (Madras)] (ii) V.Ramaswamy Iyengar Vs. CIT [reported in (1960) 40 ITR 377 (Madras)] (iii) Hindustan Sanitary Ware and Industries Ltd. Vs. CIT [reported in (1978) 114 ITR 85 (Calcutta)] (iv) CIT Vs. Ishwardass [reported in (1986) 158 ITR 168 (Delhi)] and (v) CIT Vs. Harikishan Jethalal Patel [reported in (1987) 168 ITR 472 (Gujarat)] that the power to remand the case should be exercised on judicial principles. 28. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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