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TMI Blog2022 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed.Therefore, we find that the Tribunal ought not to have interfered with the exercise of jurisdiction by the Commissioner under Section 263 of the Act. Revenue appeal allowed. - ITAT/54/2022 IA No.GA/1/2022 - - - Dated:- 29-5-2022 - THE HON BLE JUSTICE T. S. SIVAGNANAM And THE HON BLE JUSTICE HIRANMAY BHATTACHARYYA Mr. Smarajit Roychowdhury , Adv. ...for the appellant ORDER The Court : This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the Act, for brevity) is directed against the order dated 3rd December, 2020 passed by the Income Tax Appellate Tribunal B Bench Kolkata (the Tribunal) in I.T.A. No. 434/Kol/2020 for the assessment year 2015-2016. The revenue has raised the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 143(3) of the Income Tax Act, 1961? (d) Whether on the facts and circumstances of the case, the order of the Learned Income Tax Appellate Tribunal was erroneous in law and in facts while quashing the order under section 263 of the Income Tax Act, 1961 without considering the observation of the erstwhile Learned Principal Commissioner of Income Tax-15, Kolkata of placing reliance on Hon ble Apex Court order in the case of Summan Poddar reported in (2019) 112 Taxmann.com 330(SC)? We have heard Mr. Smarajit Roychowdhury, learned standing counsel appearing for the appellant. Though notice has been served on the respondent, none appears for the respondent. The issue raised in this appeal is squarely covered by the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer was not proper or insufficient. On reading of the orders passed by the Commissioner under Section 263 which are the subject matter in ITAT No. 156 of 2021 and other similar matters, it is seen that the Commissioner has disclosed to the assessee as to why in his case the power under Section 263 has to be invoked. On reading of the orders passed by the Commissioner, we find that the order to be a reasoned order and there is nothing to conclude. The issue was pre-decided. The assessments orders which are subject matter of Section 263 action shows that an enquiry has not been conducted by the assessing officer in the manner it ought to have been conducted. We say so because, the officers of the income tax department we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anges their shares were very rarely traded and in the background of these facts the enquiry should have been conducted by the assessing officer. Therefore, we are of the clear view that the assumption of jurisdiction under Section 263 of the Act by the respective Commissioners was fully justified and are shown to be proper exercise of power. The tribunal while interfering with the orders of the Commissioner once again posed a wrong question to itself and failed to approach the matter in the proper perspective considering the backgrounds in which the power was invoked. The tribunal brushed aside the surrounding circumstances which have led to such assessments or orders under Section 263. The manipulative practice adopted by the stock brokers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares. They jumped into the fray the assessees are to be reminded of the doctrine of caveat emptor . The assessees cannot take shelter under the opinion given by the experts as it is not the expert who has indulged in the transaction but it is the assessee. Therefore by following such experts advice if the assessee gets into an web it is for him to extricate himself from the tangle and he cannot reach out to the expert to bail him out. The assessees cannot be heard to say that they had blindly followed advice of a third party and made the investment. Selection of shares to be purchased is a very complex issue, it requires personal knowledge and expertise as the investment is not in a mutual fund. None of the assessees before us have shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idate the tainted transactions. It has been established by the department that the rise of the prices of the shares was artificially done by the adopting manipulative practices. Consequently whatever resultant benefits which accrue from out of such manipulative practices are also to be treated as tainted. However, the assessee had opportunity to prove that there was no manipulation at the other end and whatever gains the assessee has reaped was not tainted. This has not been proved or established by any of the assessee before us. Therefore, the assessing officers were well justified in coming to a conclusion that the so called explanation offered by the assessee was not to their satisfaction. Thus, the assessee having not proved the genuine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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