TaxTMI 
TaxTMI 
2022 (11) TMI 1036
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....ht of Rule 18(6) of ITAT Rules. 4. The bone of contention is the allegation of the PCIT that while framing the assessment order, the Assessing Officer has not enquired about the transaction entered into by the assessee, which resulted in capital gains and it was claimed as exempt u/s 10(38) of the Act, thereby making the assessment order not only erroneous but also prejudicial to the interest of the Revenue. 5. The PCIT served the following notice assuming jurisdiction u/s 263 of the Act: "M/s/Mr/Ms Subject: Notice for Hearing in respect of Revision proceedings u/s 263 of the INCOME TAX ACT, 1961 - Assessment Year 2015- 16. In this regard, a hearing in the matter is.fixed on 29/01/2021 at 03:15 PM. You are requested to attend in person or through an authorized representative to submit your representation, if any alongwith supporting documents/information in support of the issues involved (as mentioned below). If you wish that the Revision proceeding be concluded on the basis of your written submissions/representations filed in this office, on or before the said due date, then your personal attendance is not required. You also have the option to file....
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....red to do in your case has rendered the assessment order erroneous in so far as it is prejudicial to the interest of revenue. Hence, the order passed by the A.O. requires to set aside. You are hereby given the opportunity of being heard and show cause as to why the impugned order be not enhanced/modified or set-aside for fresh assessment u/s 263 of the I.T Act 1961. The case is fixed for hearing on 29.01.2021 at 03:15 PM." 6. A perusal of the aforementioned notice shows that the PCIT has alleged that the assessee has shown sale of shares of CCL International Ltd. on which the assessee has claimed short term capital gain of Rs. 7.26 lakhs wherein the price of shares jumped by more than 600% [approx.] in a short span of period of nine months. 7. We find that the notice u/s 142(1) of the Act dated 05.09.2017 was issued and served upon the assessee to which, on 22.09.2017, the assessee filed a detailed reply submitting copy of return of income, copy of computation of income, copy of bank statement of Corporation Bank alongwith TDS details as per Form No. 26AS. 8. Second notice dated 11.10.2017 was issued alongwith the following questionnaire : "REQUREMENT LIS....
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....were furnished as under: Sale Proceeds of 2000 CCL International Ltd Shares 836000 Less: Purchase cost of 2000 shares 110000 SHORT TERM CAPITAL GAIN 726000 LONG TERM CAPITAL GAIN A. Sale Proceeds of 200 shares of Reliance India.Ltd 221657 Less: Purchase cost 2000 219657 B. Sale Proceeds of 700 shares of Intec Capital Ltd 73848 Less: Purchase cost 7000 66484 LONG TERM CAPITAL GAIN 286141 11. The statement of Affairs as on 31.03.2014 was also furnished, which is as under: 4975066 Fixed Assets 25% share in Shop No.254 GIP NOIDA 1640512 Plot at Model Town Rudrapur Uttrakand 1756700 Other assets SHARES Swastik Solvent Products (India) Limited-Unquoted 494000 Shares-Quoted 315370 Advance agst shares-Geonka Business and Finance Ltd 50000 Trisha Media Ltd ' 50000 CCL, International Ltd 110000 Balance with S B A/c Corporation 54384 Bank G K II, New D....
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....0/- (One Lac Ten Thousand Only) @ 55/-per share. The amount of Rs, 100000/- has been received by cheque & rest amount in cash. 14. After satisfying himself, the Assessing Officer completed the assessment proceedings u/s 143(3) of the Act vide order dated 13.11.2017. 15. As mentioned elsewhere, the PCIT, at Para 13 of his order at Page 41 observed that the assessee has entered into a transaction which resulted into capital gains of Rs. 7.26 lakhs, which was claimed as exempt u/s 10(38) of the Act. 16. This very allegation of the PCIT is factually incorrect as the assessee has not claimed any exemption u/s 10(38) of the Act for Rs. 7.26 lakhs but the same was returned as short term capital gains as is evident from the revised computation of income exhibited at Page 18 of the Paper Book. 17. Considering the facts of the case in totality, we are of the considered view that the Assessing Officer had made specific enquiries during the assessment proceedings to which specific reply was furnished by the assessee alongwith supporting documentary evidences and all such evidences were duly examined and considered by the Assessing Officer before completing the assessment p....
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....case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to the interests of the Revenue, then also the power of su....