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TMI Blog2025 (1) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount by the assessee. These shares were duly dematerialized and were held by the assessee for more than three years.
These shares were admittedly sold through a recognized, through a registered share broker in the recognized stock exchange in the open market after duly suffering STT. Hence, there is absolutely no reason for the lower authorities to doubt the transaction carried out by the assessee. No case made out by the revenue for justifying the denial of exemption under section 10(38) - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... r its assessment within the meaning of section 147 of the Act. Accordingly, the assessment of the assessee was sought to be reopened vide issuance of notice under section 148 of the Act which was issued on 27-03-2021 after obtaining the prior approval in terms of section 151 of the Act from the learned JCIT, Central Range- 1, New Delhi. In response to the notice under section 148 of the Act, the assessee furnished the return of income on 1-4-21 and asked for copy of reasons recorded for reopening the assessment. The reasons recorded by the learned AO for reopening the assessment was furnished to the assessee on 22-02-2022. The learned AO had observed that assessee has not submitted any objection against the reasons recorded which were supplied to him. However, a reply was filed by the assessee raising objections against reopening vide his letter dated 2-7-2021. The Learned CIT-A admitted the fact that the Learned AO did not dispose of the objections by way of a separate speaking order, but held that the same would not be fatal to the reassessment proceedings. He directed the Learned AO vide letter dated 11-11-2022 to pass a separate speaking order disposing of the objections. In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value of those shares were going down, the assessee decided to sell those shares as detailed under:- a) Sold on 08-06-2015 - 60,000 shares at Rs 61.70 per share b) Sold on 09-06-2015 - 22,500 shares at Rs 58.15 per share c) Sold on 25-02-2016 - 77,500 shares at Rs 30.85 per share Total 1,60,000 shares sold for Rs 74,01,250/-. 9. The Learned AR before us submitted that the addition was made by the Learned AO on general grounds on the basis of information received without making any enquiry or bringing any material to the contrary and without application of his own mind. The Learned AO had disallowed the claim of LTCG of Rs. 73,99,475/- and after adding 3% as commission of Rs. 2,21,984/- as unexplained expenditure under section 69C of the Act against which assessee preferred an appeal before the Learned CITA. The Learned CITA obtained remand report from the Learned AO and dismissed the legal ground raised before him challenging the validity of reopening under section 147 of the Act and also specific grounds raised thereon on merits. It is not in dispute that assessee had made purchase of 2 lakh shares at the rate of Re. 1 each of Anax Trade com Limited on 25-09-2012 for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to take a decision to sell the shares. 10. We find that the lower authorities brushed aside the submissions and all the documents filed during the course of the respective proceedings and merely relied upon the information received through CRIU module of insight portal and failed to conduct an independent inquiry against the claim of the assessee. Absolutely, there is no direct or indirect evidence against the assessee which has been brought on record by the lower authorities to justify the addition by denying the claim of exemption under section 10(38) of the Act for the assessee. The lower authorities had merely relied on third party information in this regard. It is pertinent to note that the transaction of purchase of shares made by the assessee in this regard has been accepted and no doubts or adverse inference has been drawn on the same. These investments in shares were made in September 2012. The payments for the same had been made by account payee cheque out of the disclosed bank account by the assessee. These shares were duly dematerialized and were held by the assessee for more than three years. Seeing the fact that the shares were going down drastically as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction which requires juridical frown and condemnation. Further, the Tribunal had also placed reliance on the decision of the Hon'ble Calcutta High Court in the case of PCIT Vs. Swati Bajaj reported in 139 taxmann.com 352 (Cal HC). Further, in para 31 of the said order, the Tribunal also records the fact that they are not inclined to go into the details of various judgments wherein, addition have been deleted on the scrip of M/s. Sunrise Asian Ltd and statement of Shri Vipul Vidur Bhatt has been discarded on the ground that assessee has not given cross examination. Further, in the said paragraph, the Tribunal had extensively relied on the SEBI's Investigation carried out with regard to said scrip. 13. We have already dealt extensively regarding the SEBI order as passed in respect of Yamini Investment Company Ltd shares by clearly bringing on record that the said order does not either directly or indirectly implicate the assessee in any manner whatsoever and all the allegations levelled in the said SEBI order does not apply factually to the assessee- be it with regard of stock split or the period of enquiry carried out by SEBI etc. The SEBI order is for the enquiry conducted from Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Jurisdictional High Court, the same would prevail over other High Courts, Tribunal and this Tribunal need not take cognizance of the Hon'ble Non- Jurisdictional High Court or for that matter any other Tribunal decision. The law is very well settled by the decision of Hon'ble Supreme Court in the case of Union of India Vs. Kamalakshi Finance Corporation Ltd reported in 55 ELT 43 (1991) that the decision of the Hon'ble Jurisdictional High Court would have higher precedence value than the decision of the Hon'ble Non Jurisdictional High Court or the Tribunal. Hence, we deem it follow the decision of the Hon'ble Jurisdictional High Court in the instant case before us. 14. Further, we find that in assessee's brother's case, Shri Rajiv Madan, in respect of identical facts of sale of shares of Yamini Investment Company Limited, the income tax department had accepted the claim of short term capital gains disclosed by him to be genuine in the reopened assessment proceedings under section 143(3) read with section 147 of the Act dated 26-5-23. The learned AR placed on record the copy of the said assessment order in pages 53-56 of the synopsis. This evidence also goes against the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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