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TMI Blog2021 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... d dealt with 160 scrips and out of that, it had incurred losses in respect of 45 scrips during the year which had already been tabulated hereinabove. Out of the same, the ld. PCIT had identified four scrips and had decided to treat the said loss as bogus loss in the light of findings of the DIT Investigation Kolkata and not based on his independent analysis and undoubtedly the said details were indeed filed before the ld. AO. The ld. AO in examination of the details of all the scrips had chosen to disallow loss only in respect of three scrips. As safely concluded that the ld. AO had indeed taken a possible view on the matter. PCIT merely because he has got a different view on the same set of facts cannot try to substitute his view in place of the view already taken by the ld. AO by invoking his revision jurisdiction u/s.263. No hesitation in quashing the revision order passed u/s 263 of the Act by the ld. PCIT. Accordingly, the ground raised by the assessee is allowed. - ITA No. 326/Mum/2021 - - - Dated:- 30-11-2021 - SHRI M.BALAGANESH, ACCOUNTANT MEMBER And SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER Assessee by : Shri Suchek Anchaliya Revenue by : Ms. Shailaja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so traded in four more scrips and incurred loss and that these scrips were also part of the 84 penny stock companies investigated by Kolkata Income Tax department. The four scrips which were sought to be treated as penny stock by the ld. PCIT are as under:- Sr. No. Name of the share Purchase quantity Purchase amount Sale quantity Sale amount Profit/loss 1 MKEL (Matra Kaushal Enterprise Ltd.) : 2,21,000 V ' 1,10,94,170 2,21,000 18,09,990 (-)92,84,180 2 Pearl Agriculture Ltd. 3,94,000 2,13,35,331 3,94,000 42,96,980 (-)1, 70,38,351 3 Rajlaxmi Ind 12,000 36,62,306 12,000 11,22,360 (-)25,39,946 4 Sunrise Asian 3,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. 3.2. The preliminary facts stated hereinabove are undisputed and hence the same are not reiterated herein for the sake of brevity. It is a fact that assessee had traded in 160 scrips during the year and had incurred loss. It is a fact that assessee has incurred loss during the year on sale of shares in respect of the following scrips:- Name Op.Qty Op. Amount P.Qty P.Amount S.Qty S. A mount CL.Qty Cl. Amount Profit Loss B.H.E.L. DM 4,50,000 11,36,84,482.95 4,50,000 10,11,69,034.10 (1,25,15,448.85) BALAJI TELE DM 2,00,000 1,37,62,000.00 2,00,000 1,36,33,356.50 (1,28,643.50) BALLRPUR IND DM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GREEMCREST FIN. SER. 80,000 51,45,800.00 80,000 48,93,500.00 (2,52,300.00) HEG LTD, DM 2,39,129 7,92,59,372,67 2,39,129 5,82,09,560.75 (2,10,49,811.92) HIND CONSTN DM 67,65,454 26,12,05,807.66 44,65,454 12,82,14,419.45 23,00,00 0 8,59,40,976.14 (4,70,50,412.07) j K BANK DM 6,50,000 10,63,41,885.65 6,50,000 8,19,08,415.23 (2,44,33,470.42) JAI PRAKASH ASSOCIATE 16,! 0,000 10,47,40,900.92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,17,237.75 (1,35,228.45) MERCATORLIN DM 31,003 5,35,035.01 1,86,506 61,10,136.29 2,17,509 47,52,088.43 (18,93,082.87) MKEL 2,21,000 1,10,94,170.10 2,21,000 18,09,990.00 (92,84,180.10) MORARJEE DM 1,50,000 57,45,211.60 50,000 16,66,080.35 1,00,000 36,27,754.80 (4,51,376.45) NUT DM 4,50,000 2,27,07,421.14 4,50,000 2,19,12,290.86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18,90,728 6,73,58,347.56 18,90,728 87,54,258.80 (5,86,04,088.76) TORRONT POWER 15,000 25,68,112.80 15,000 23,24,578.05 (2,43,534.75) UNITECH (P) DM 65,00,000 17,44,42^24.85 65,00,000 14,97,27,459.15 (2,47,14,865.70) VANDANA KNITWEAR DM 3,64^31 1,11,78,287.28 3,64,331 26,24,379.36 (85,53,907.92) WOKHARDD DM 85,000 7,21,98,779.21 85,000 7,12,81,572.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E and BSE through registered share broker. The decision to sell the shares were taken by the assessee as the prices of the scrips were going down and in order to restrict losses, the assessee had to sell shares. With regard to specific query pointed out to the partner vide Question No.12 about the Investigation carried out by the Kolkata Investigation carried out by the Kolkata Income Tax department on scrips, broking firm and certain individuals involved in providing accommodation entries in the form of bogus long term capital gains by prices rigging of shares, the concerned partner replied that he does not know anything about it and that purchase and sale of shares had been done through recognized stock exchange. After this reply, the ld. AO did not pose any question to the concerned partner. He directly proceeded to disallow the losses claimed on three scrips i.e. Cressenda Company Ltd., Pearl Electric Ltd., and Pine Animations Ltd. totaling to ₹ 4,26,63,518/- and completed the assessment. 3.4. Even before the ld. PCIT, in respect of specific four scrips i.e.MKEL (Matra Kaushal Enterprise Ltd.,), Pearl Agriculture Ltd., Rajlaxmi Industries Ltd., and Sunrise Asian Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. In the instant case, there is absolutely no examination carried out by the ld. PCIT to dispute the supporting documents furnished by the assessee. The ld. PCIT merely placed reliance on the investigation report of Kolkata Income Tax department to arrive at his conclusion. Reliance is heavily placed on the decision of the Hon ble Jurisdictional High Court in the case of Nirav Modi reported in 390 ITR 292 in support of our aforesaid observations. 3.6. The ld. AR argued before us that the entire revision proceedings u/s.263 of the Act has been initiated based on revenue audit objection dated 21/02/2017 and hence, it is a clear case of borrowed satisfaction on the part of the ld. PCIT and hence, the assumption of jurisdiction u/s.263 is to be quashed. In support of this contention, he placed on record the copy of audit objection which are enclosed in pages 8-10 of the paper book. From the perusal of the pages 8-10 of the paper book filed before us we find that the letter written by the ld. AO on 17/05/2019 addressed to the ld. PCIT stating that audit objection has been received vide LAR No.MUM/CA/2018-19/0199 dated 21/02/2017. In the said letter dated 17/05/2019, the ld. AO say ..... X X X X Extracts X X X X X X X X Extracts X X X X
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