9911796707
TMI Blog2023 (12) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income on 24.09.2015, reporting total income at Rs. 32,18,140/-. Case of the assessee was selected for scrutiny on the following three main reasons: (a) Mis-match between turnover as per GST/Service Tax return and income-tax return. (b) Large cash deposits in savings bank account and (c) Suspicious sale transaction in shares and exempt LTCG shown in the return. 3.1. In the course of assessment, assessee appeared and furnished copy of tax audit report in Form No. 3CB and 3CD, bank statement, computation of total income, Form 26AS as well as books of account including cash book and ledger with supporting bills, memos, vouchers which were test checked. Ld. AO in the impugned assessment order noted that assessee had explained the mis-match of turnover in service tax return and ITR. He also noted that assessee had explained cash deposits and sale transactions in shares. After considering the submissions and explanations furnished by the assessee, Ld. AO completed the assessment at an assessed income of Rs. 35,50,070/-. 3.2. Subsequently, Ld. Pr. CIT on examination of the assessment records noticed that AO had not properly examined the issue of suspicious sale transaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in appeal before the Tribunal. 4. Before us, Ld. Counsel for the assessee pointed that present case is a case where Ld. AO has made all the required examination of the records furnished before him in respect of transaction of sale of shares whereon LTCG was earned and claimed as exempt u/s. 10(38) of the Act. He submitted that assessee had duly disclosed and reported his claim of LTCG in the return and computation of income placed on record. He referred to the paper book containing 35 pages placed on record to corroborate the submissions made by him. Copy of order sheet of the assessment proceedings forms part of the paper book placed at pages 10 and 11. He referred to the order sheet entry dated 23.06.2017 wherein Ld. AO has asked the assessee to furnish details of sale of shares. On the next entry in the order sheet dated 11.07.2017, Ld. AO has noted that assessee has furnished the details of shares which are examined and discussed with the assessee. Ld. Counsel also referred to office note forming part of the assessment order placed at page 12 wherein at point no. 4, ld. AO has categorically stated that "transaction in shares i.e. sale of shares have been examined with refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of any merit. 4.4 All these details and documents have been duly examined by the Ld. AO in the course of assessment proceedings which were also placed before the Ld. Pr. CIT in the revisionary proceedings. None of these documents have been controverted and disproved to taint the transaction as bogus. Ld. Counsel further submitted that in the impugned revisionary order passed by Ld. Pr. CIT, there is no reference as to scrip of Lifeline Drugs & Pharma Ltd. which has been tainted as paper/shell/bogus company so as to doubt the gains earned by the assessee. According to him, it is a genuine transaction executed on the regulated Stock Exchange and corroborated by all the relevant documentary evidence. 5. Per contra, Ld. CIT, DR placed reliance on the decision of Hon'ble High Court of Calcutta in the case of PCIT Vs. Swati Bajaj (2020) 139 taxmann.com 352 (Cal) to submit that similar issue was dealt therein relating to penny stock transactions which was held against the assessee. To this effect, a specific query was raised by the Bench to understand if there is any such decision by the Hon'ble jurisdictional High court of Guwahati since present case before the Tribunal is at its Guw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; [because AO has to discharge dual role of an investigator as well as that of an adjudicator] then in aforesaid any of the events, the order passed by the AO can be termed as erroneous order. Looking at the second limb as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue, one has to understand what is prejudicial to the interest of the revenue. The Hon'ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. "prejudicial to the interest of the revenue'' has to be read in conjunction with an erroneous order passed by the AO. Their Lordships held that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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