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TMI Blog2023 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... and the CIT (A) have culled out proximate facts in each of the cases, took into consideration the surrounding circumstances which came to light after the investigation, assessed the conduct of the assessee, took note of the proximity of the time between the buy and sale operations and also the sudden and steep rise of the price of the shares of the companies when the general market trend was admittedly recessive and thereafter arrived at a conclusion which in our opinion is a proper conclusion and in the absence of any satisfactory explanation by the assessee, AO were bound to make addition u/s 68 - Decided in favour of the revenue. - ITAT/42/2023 IA NO: GA/2/2023 - - - Dated:- 30-3-2023 - THE HON BLE JUSTICE T.S. SIVAGNANAM And THE HON ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order has followed its decision in the case of M/s. Gitsh Tikmani (HUF) and Others and other connected matters. The revenue had preferred appeals before this Court against the said decision and other connected matters and the appeal was allowed by this Court in the case of Principal Commissioner of Income Tax-5, Kolkata vs. Swati Bajaj and Ors. reported in 2022 SCC Online Cal 1572. Learned senior advocate appearing for the respondent submitted that in the instant case, the point is as to whether there was no enquiry conducted by the Assessing Officer warranting exercise of jurisdiction by the Principal Commissioner of Income Tax under Section 263 of the Act. This issue was considered in the abovereferred decision at paragraph 100 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 were fully aware of the investigation which was done and the report been circulated and therefore at that stage that the officer had to take note of such report to put the assessee on notice and commenced an enquiry by calling upon the assessee to justify the genuineness of the claim of LTCG/STCL. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and entry operators was not even adverted to by the tribunal and the entire matter was dealt with in a very superficial manner without dwelling deep into the core of the issue. The tribunal being the last fact finding authority was required to go deeper into the issue as the matter have manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice 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 to have to made any risk analysis before making their investment in a penny stock . If according to them they have blindly taken a decision to invest in insignificant companies they having done so at their own peril have to face the consequences. Thus, the conduct of the assessees before*us pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted. 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 genuineness of the claim, the creditworthiness of the companies in which they had invested and the identity of the persons to whom the transactions were done, have to necessarily fail. In such factual scenario, the Assessing Officers as well as the CIT(A) have adopted an inferential process which we find to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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