2020 (12) TMI 1067 - AT - Income Tax

Tribunal overturns Commissioner's Section 263 order, upholds assessment. Assessee's appeal allowed.

Smt. Shweta Agrawal Versus Pr. CIT Indore

The Tribunal set aside the Principal Commissioner of Income Tax's order invoking Section 263 and restored the assessment order passed by the Assessing ... Revision u/s 263 - Long term capital gain as earned on sale of shares and claimed exempt under section 10(38) - HELD THAT:- Assessee had filed return of income on 31.10.2015 declaring total income of ₹ 7,39,910/-. The case of the assessee was picked up for scrutiny assessment and the assessment was concluded by accepting the return of income so declared. It would be pertinent to examine the action taken by the Assessing Officer during the assessment proceedings. Assessing Officer issued a show cause to the assessee along with questionnaire. The assessee in response there to filed a detailed submission. As stated that the statement of the assessee u/s 131 of the Act was also recorded by the Assessing Officer. Ld. Counsel drew our attention to the statement of assessee enclosed at Paper Book pages 21 to 24. The assessee had replied to questions, it was stated that the shares were sold through exchange. Hence, it is not a case where no enquiry was conducted. In fact from the material placed before us suggests some application of mind, by Assessing Officer. Admittedly, the Ld. Pr. CIT in the impugned order has recorded the factum collection of evidence and recording of statement. Action of the Ld. PCIT revising the assessment order under the peculiarity of the facts and circumstances of the case cannot the sustained. The impugned order is therefore, set aside and the grounds raised by the assessee in this appeal are allowed. Issues Involved:1. Invocation of Section 263 of the Income Tax Act.2. Erroneous and prejudicial assessment order.3. Adequacy of inquiry conducted by the Assessing Officer (AO).4. Justification for setting aside the assessment order for re-examination.Issue-wise Detailed Analysis:1. Invocation of Section 263 of the Income Tax Act:The primary issue in this case is whether the Principal Commissioner of Income Tax (Pr. CIT) was justified in invoking Section 263 of the Income Tax Act to set aside the assessment order passed by the AO. The Pr. CIT initiated proceedings under Section 263, believing the assessment order was erroneous and prejudicial to the interests of revenue due to inadequate inquiry into the genuineness of the Long Term Capital Gain (LTCG) claimed by the assessee.2. Erroneous and Prejudicial Assessment Order:The Pr. CIT considered the assessment order erroneous and prejudicial to the interests of revenue because the AO accepted the LTCG claim without conducting proper inquiries. The Pr. CIT noted that the AO did not make any specific inquiries into the genuineness of the LTCG from the sale of shares of M/s Sunrise Asian Limited, a company classified as a penny stock. The Pr. CIT emphasized that the AO should have conducted further verification, especially given the suspicious nature of the transactions.3. Adequacy of Inquiry Conducted by the Assessing Officer (AO):The assessee argued that the AO had made the requisite inquiries during the assessment proceedings, including issuing a show cause notice and recording the assessee's statement under oath. The assessee provided various documents to support the LTCG claim, such as purchase and sale notes, share transfer forms, demat statements, and bank statements. The AO accepted these documents and concluded the assessment. However, the Pr. CIT contended that the AO did not make adequate inquiries to substantiate the genuineness of the LTCG claim, thus rendering the assessment order erroneous.4. Justification for Setting Aside the Assessment Order for Re-examination:The Tribunal considered the arguments from both sides and examined the material on record. It found that the AO had indeed made some inquiries and collected evidence during the assessment proceedings. The Tribunal referred to various judicial precedents, emphasizing that an order cannot be deemed erroneous if the AO has taken a possible view based on the evidence provided. The Tribunal cited cases where it was held that the Pr. CIT must conduct an inquiry themselves if they believe the AO's inquiry was inadequate. The Tribunal concluded that the AO had applied their mind and conducted an inquiry, albeit not as exhaustive as the Pr. CIT would have preferred. Therefore, the Tribunal found that the Pr. CIT's invocation of Section 263 was not justified in this case.Conclusion:The Tribunal set aside the Pr. CIT's order invoking Section 263 and restored the assessment order passed by the AO. The Tribunal emphasized that the AO had made inquiries and collected evidence, and the Pr. CIT's dissatisfaction with the extent of the inquiry did not justify the invocation of Section 263. The Tribunal allowed the appeal filed by the assessee, concluding that the assessment order was neither erroneous nor prejudicial to the interests of revenue.