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TMI Blog2023 (4) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 be a process which would be followed by a reasonable and prudent person. Taking 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, the Assessing Officers were bound to make addition under Section 68 On a reading of the impugned order we find that in paragraph 10 the entire decision in Us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 2014-15 dated 12.01.2021. Against the said decision the revenue had preferred appeal before this Court in ITAT No. 42 of 2013 which was allowed by judgement dated 30.03.2023. For better appreciation the judgement is quoted hereinbelow : The Court : - This appeal by the revenue filed under Section 260A of the Income Tax Act, 1961 [the Act, for brevity] is directed against the order dated 12th January, 2021 passed by the Income Tax Appellate Tribunal, A Bench, Kolkata in ITA No.874/Kol/2019 for the assessment year 2014-15. The revenue has raised the following substantial questions of law for consideration : A. Whether the Learned Tribunal has committed substantial error in law by setting aside the order passed under section 263 of the Income Tax Act, 1961 by the Pr. Commissioner of Income Tax without appreciating that the assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue ? B. Whether the Learned Tribunal has committed substantial error in law exemption cannot be allowed under section 10(38) of the Income Tax Act, 1961 wherein entire transaction is colluded and bogus ? C. Whether the Learned Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 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. The assessing officer turned a blind eye to the project investigation which was carried out by the department. The assessing officer lost sight of the fact that the enquiry did not commence from that of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the surrounding circumstances was required to be taken note of by the tribunal which exercise has not been done. We have considered as to whether in such an event, should the matter be remanded to the tribunal for fresh consideration. We have held that there is no such requirement and that is the Court is empowered to examine! the findings recorded by the assessing officer, or the CIT (A) to arrive at a conclusion. The assessees have been harping upon the opinion rendered by the financial experts, professionals in the said field the information which were available in the media etc. All these opinions are at best suggestions to an investor. The assessees cannot state that merely because an expert had issued a buy call or there was news in the media that a particular shares shows an upwards trend and it is good time for buying those shares. They jumped into the fray the assessees are to be reminded of the doctrine of caveat emptor . The assesses 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be a process which would be followed by a reasonable and prudent person. The Assessing Officers 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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