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TMI Blog2024 (5) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim for exemption u/s 10 (38). Therefore, it is not a case where the PCIT solely proceeded based on the report of the assessing officer but on perusal of the report has examined the facts. PCIT has examined the entire assessment records and thereafter discussed the above transaction and in Annexure A to the order under Section 263 a flow chart has been given which shows how some transaction was bogus transaction dealing with penny stock shares. In the case relating to Sinhotia Metals and Minerals Pvt. Ltd. . [ 2022 (1) TMI 1297 - CALCUTTA HIGH COURT] the facts were entirely different. In the said case the PCIT directed the Joint Commissioner of Income Tax to submit a proposal and to exercise jurisdiction under Section 263 of the Act which was faulted. Therefore, the decision in the case of Sinhotia Metals and Minerals Pvt. Ltd. (supra) cannot be applied to the facts and circumstances of the case. Thus, we find that Tribunal committed a manifest error in allowing the assessee s appeal and setting aside the order passed under Section 263 of the Act. Order passed by the PCIT is restored. - HON BLE THE CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE JUSTICE HIRANMAY BHATTACHARYYA Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio and principles laid down in the decisions of the Hon ble Jurisdictional High Court in the case of Pr. CIT Vs. Swati Bajaj [2022] 139 taxmann.com 352 (Cal), Pr. CIT Vs. Hill Queen Investment (P) Ltd. [2023] 152 taxmann.com 335 (Cal) and Pr. CIT Vs. Smt. Usha Modi [2023] 152 taxmann.com 119 (Cal) ? 3. We have heard Mr. Vipul Kundalia, learned standing counsel appearing for the appellant and Mr. S.M. Surana, learned senior counsel for the respondent. 4. The learned Tribunal by the impugned order allowed the assessee s appeal and set aside the order passed by the Principal Commissioner of Income Tax-10, Kolkata (PCIT), dated 12th December, 2018 passed under Section 263 of the Act for the assessment year 2014-15. The only ground on which the learned Tribunal has set aside the order passed under Section 263 is that the PCIT had invoked his jurisdiction solely based upon a proposal received from the Assessing Officer. 5. The learned Tribunal had placed reliance on the decision of this Court in the case of Principal Commissioner of Income-tax Vs. Sinhotia Metals and Minerals Pvt. Ltd., (2023) 455 ITR 736 and few other decisions on the said point. 6. Before we examine the applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as required to justify such prima facie opinion. The Commissioner was required to set out as to why in his opinion the enquiry 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 predecided. 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 turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otality of the circumstances because the transactions are shown to be very complex, the meeting of minds of the players can never be established by direct evidence and therefore 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, of the CTT (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 he reminded of the doctrine of caveat emptor . The assessees cannot take shelter under the opinion given by the experts as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity 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 ansessee 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 gemuineness 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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