Exemption under 10(38) for long term capital gains on shares upheld where revised return and natural justice defects prevailed

Claim of exemption for long term capital gains on shares in a revised return was examined; tribunal and appellate authority found the assessee entitled to correct the return and to claim the exemption where purchases were by account payee cheques and shares held in demat over 12 months, and the AO had not noted the relevant CBDT circular permitting revised returns. The challenge to revenue actions during a survey, including denial of crossexamination of entry providers, was held to breach principles of natural justice and go to the root; on that basis the appellate bodies' acceptance of the claim was upheld and the revenue appeal dismissed.

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Issues:
1. Claim of exemption under Section 10(38) of the Income Tax Act, 1961.
2. Denial of opportunity to cross-examine entry providers.

Analysis:
1. The appeal by the Revenue was against the ITAT's order dismissing the appeal against the CIT(A)'s order for the AY 2014-15. The main issue was whether the Assessee could claim exemption under Section 10(38) after not doing so during assessment proceedings but seeking it during the appeal before the ITAT. The CIT(A) allowed the claim after considering the purchase of shares, holding period, and compliance with tax regulations. The ITAT highlighted the Assessee's right to correct mistakes in the return and the CBDT circular preventing obtaining statements during surveys.

2. The ITAT also found fault with the AO for relying on statements of entry operators to justify additions under Sections 68 and 69 of the IT Act. These statements were made in unrelated proceedings before the survey on the Assessee, depriving the Assessee of a chance to challenge or cross-examine the providers. The Court agreed with the ITAT that the principles of natural justice were violated, and the AO failed to consider the CBDT circular allowing revised returns for omitted claims. The ITAT's decision to dismiss the Revenue's appeal was upheld as no substantial legal question warranted interference by the Court.

In conclusion, the Court affirmed the ITAT's decision, emphasizing the Assessee's right to correct mistakes in returns and the importance of adhering to natural justice principles. The Revenue's appeal was dismissed, and no legal grounds were found to overturn the ITAT's ruling in favor of the Assessee.

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