TaxTMI 
TaxTMI 
2024 (8) TMI 421
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Counsel for the assessee explained that there was mistake in the order dated 03.05.2024 on two counts: (i) In Para 9 of the order, the Tribunal has observed that the objection of the assessee on the issue of low tax effect was not sustainable. He explained that the subject matter of the appeal was in connection with shares of Basukinath Real Estate Pvt. Ltd. which was subsequently merged with Unno Industries Ltd. According to the Ld. Counsel, neither Basukinath nor Unno Industries Ltd. was listed anywhere as penny stock and this fact was upheld by the Ld. ITAT, Delhi in the case of Mohit Hora (HUF) in ITA No. 410/Del/2018 as well as by the Ld. CIT(A)-12, Ahmedabad in case of Late Shri Mihir P. Panchal. The Ld. AR contended that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 03.05.2024 may be recalled and another opportunity be granted to the assessee to present its case before the Tribunal after re-fixing the appeal. 4. Per contra, Shri Ramesh Kumar, Sr. DR appearing for the department submitted that there was no mistake apparent from the record in the order dated 03.05.2024 of the Ld. ITAT and that the present Miscellaneous Application was mis-directed. He submitted that the AO had elaborately discussed in the assessment order that share as dealt in by the assessee was penny stock and that the CBDT Circular No. 5/2024 was squarely applicable to the facts of the present case. Therefore, the Ld. ITAT had rightly rejected the objection of the assessee on the issue of low tax effect after discussing the matte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t a penny stock and, therefore, the said circular was not applicable. The AO had relied upon on the investigation report of the Directorate of Investigation, Kolkata in the assessment order and the extract of the said report were also reproduced therein. It is found there-from that the Directorate of Investigation had verified the BSE listed penny stocks which were used for generating bogus LTCG and that M/s. Unno Industries Ltd. was one such BSE listed penny stock company. Thus, the entire investigation and the addition in this case was based on the fact that it was a case of organized tax evasion of bogus capital gain through penny stock. In view of this fact, it was rightly held in the order dated 03.05.2024 that the case was squarely co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n place only through banking channel and are supported by contract note from HDFC Securities and the shares of Unno Industries Ltd. being listed shares on stock-exchange were filed by the assessee before the AO. I note that the shares of assessee were sold through HDFC Securities Ltd. at Bombay Stock Exchange and assessee received sale consideration from HDFC Securities Ltd. after payment of STT and brokerage. However, the AO has not brought on record any material to support its finding that there has been collusion/ connivance between the broker and the assessee for the introduction of assesses own unaccounted money. In view of the above, I am of the considered view that the LTCG claimed by the assessee is resulting from purchases made dir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stigation Directorate, Kolkata, wherein the share of Unno Industries Ltd. was reported as a BSE listed penny stock. In view of these facts, we do not find any merit in the objection of the assessee and there is no mistake in our finding as given in the order dated 03.05.2024. 10. Regarding objection of the assessee to the observations as made in Para 16 of the order, the assessee has quoted only a part of the observation. It was also mentioned in the said Para that "It is found from the contract memo that no brokerage was charged by M/s. Jwalaji Suppliers Pvt. Ltd., Kolkata for sale of the shares to the assessee. The broker in Calcutta was after all doing a business and not running a charity." It is, thus, apparent that finding as given ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion th....