TaxTMI 
TaxTMI 
2022 (9) TMI 358
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.... questions of law for consideration :- (a) Whether on the facts and circumstances of case, the order of the Learned Income Tax Appellate Tribunal was erroneous in law and in facts while placing its reliance on wrong case law of the Apex Court and quashed the order under section 263 of the Income Tax act, 1961, observing that the Learned Principal Commissioner of Income Tax-15, Kolkata failed to show/demonstrate that the order of Assessing Officer was erroneous in accepting the claim of Long Term Capital Gain? (b) Whether on the facts and circumstances of the case, the order of the Learned Income Tax Appellate Tribunal was erroneous in law and in facts while quashing the order under section 263 of the act, 1961, that the condition prece....
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.... of Principal Commissioner of Income Tax vs. Swati Bajaj in ITAT/6/2022 reported in 2022 SCC Online Cal 1572. In the batch of cases we had examined an identical issue as to whether the Commissioner was justified in invoking his power under Section 263 of the Act, the operative portion of the judgment reads as follows: "99. While proposing to invoke the power under Section 263 of the Act, the question as to whether the Commissioner was justified in invoking the power under Section 263 has to be decided based on facts of each case. The assessee cannot be allowed to contend that the language employed in the orders passed by the Commissioner under Section 263 does not mention about how the assessments order was erroneous in so far as it is pr....
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....ion 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 turned a blind eye to the project investigation which was carried out by the department. The assessing officer lost sight of the fact that the enquiry did not commence from that of the assessee and more particularly the name of the assessee did not feature in the investigation report. Therefore, the assessing officer was bound to cause an enquiry by calling upon the assessee to explain and justify the genuineness of the claim for exemption made by them. If th....
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....n adverted to by the tribunal and the entire matter was dealt with in a very superficial manner without dwelling deep into the core of the issue. The tribunal being the last fact finding authority was required to go deeper into the issue as the matter have manifested large scale scam. Thus, the orders of the tribunal are not only perfunctory but perverse as well. The exercise that was required to be done by the tribunal is to consider the totality 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 consi....
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....is before making their investment in a "penny stock". If according to them they have blindly taken a decision to invest in insignificant companies they having done so at their own peril have to face the consequences. Thus, the conduct of the assessees before us probabilities the stand taken by the revenue, rightly the mind of the assessee as an investor was taken note to deny the claim for exemption. It is in this background that the human probabilities would assume significance. As observed earlier the doctrine of preponderance of probabilities could very well be applied in cases like the present one. We say human probabilities to be the relevant factor as on account of the fact that the assessees are of the individuals or Hindu Undivided ....
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....thiness 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....