TaxTMI 
TaxTMI 
2023 (8) TMI 25
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....ring income from the source of finance, house property, salary, and other sources. The assessment was framed under section 143(3) of the Act wherein an addition of Rs. 2,50,680.00 was made to the total income of the assessee on account of the disallowance of interest expenses. 3.1 However, the learned PCIT on examination of the assessment records found that the assessee has shown long-term capital gain of Rs. 1,57,91,326.00 which was claimed as exempted under section 10(38) of the Act. According to the learned PCIT, the impugned long-term capital gain shown by the assessee was arising from the sale purchase of the script of a penny stock company namely NCL RESEARCH. Thus, the learned PCIT directed the AO to make the addition to the total income of the assessee for an amount of Rs. 1,68,34,500.00 under the provisions of section 68 of the Act. The relevant extract of the order of the learned PCIT is extracted below: The majority of the cases reported above have been decided by various Courts and Tribunals (other than the Kolkata Bench of ITAT) and around the period of decision rendered in the case of Hon'ble ITAT, Kolkata in the case of Minu Gupta on 12.12.2018 and after ....
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....emat account of the assessee and long term capital gain was claimed by the assessee. 10. We consider that the assessee could not appear before the Id. Pr. CIT. Therefore in the interest of justice, we consider it to appropriate that one more opportunity of hearing should be granted to the assessee. 11. We would like to make it clear that before passing any order, Id. Pr. CIT may also be consider the order passed by the Kolkata ITAT in ITA No. 731/Kol/2018 in the case of Smt. Minu Gupta vs. ITO (Kolkata). 12. In the light of the aforesaid facts and circumstances, we restore this case the file of Pr.CIT for deciding de novo after examination of details to be submitte by the assessee and after affording adequate opportunity of being heard." 8.1 It is pertinent to note that the Kolkata ITAT in the case of Smt. Minu Gupta Vs. ITO in ITA No. 731/Kol/2018 has decided the issue in favour of the assessee with respect to the script i.e. NCL RESEARCH which is also in dispute before us. As per the direction of the ITAT, the learned PCIT was expected to decide the issue in the light of the principles/ ratio laid down by the Kolkata ITAT in the case of Smt. Minu Gup....
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....4/-. The assessee has received Rs. 98,37,820.91/- on 26.03.2013 from M/s Kunvarji Finstock Pvt. Ltd for sale of 6,500 shares of NCL Research Ltd. which were deposited in the same bank account. Similarly, the assessee has received Rs.69,58,694/- on 22.03.2013 from M/s Jainam Share Consultant Pvt Ltd for the sale of 4,500 shares of NCL Research Ltd. which too were deposited in the same bank account. Thus, it is clear that the assessee has purchased the said shares on BSE platform and also paid STT on the said shares at the time of purchase & sale of shares and all the payments & receipts were carried out through banking channel. 8.3 From the above, it is noticed that all the necessary documents in support of the transactions carried out by the assessee have been duly furnished by the assessee before the authorities below. 8.4 At this juncture, it is also pertinent to refer the notice issued under section 142(1) of the Act by the AO during the assessment proceedings dated 10th June 2015 and 24th of August 2015, the relevant portion of the same is extracted as under: The details of demate account, details of purchase/sale of shares and securities with chart showing short....
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....n was a solitary transaction and no development activity was made, is in consonance with the facts recorded by the Assessing Officer. The only difference is, the Assessing Officer has taken a view that for any purchase or sale of a land, assessee is liable to pay the capital gains tax and the Commissioner has taken a different view. In view of the authority in Malabar Industrial Company Limited, merely because two plausible views are available and the Assessing Officer has taken one view, the jurisdiction under section 263 of the IT Act cannot be exercised. In view of the above, we are of the considered view that invoking section 263 of the IT Act in the facts and circumstances of the case was erroneous. 8.7 In view of the above and after considering the facts in total, we are of the view that there is no infirmity in the assessment order requiring the revision under the provisions of section 263 of the Act. Accordingly, we quash the order framed under section 263 of the Act. Hence, the ground of appeal of the assessee is hereby allowed. 9. In the result, the appeal filed by the assessee is allowed. Order pronounced in the Court on 30-06-2023 at Ahmedabad. =============....