Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2013 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (2) TMI 16 - AT - Income TaxJurisdiction power u/s 263 by CIT(A) - exemption u/s. 10(38) on LTCG on transfer of equity shares of companies and units of equity oriented mutual funds - AO had omitted to examine the dates of acquisition of these shares and units - No evidence for receipt of dividends such as dividend warrants - AO ignored the provisions of Sec 14A - Held that:- Perusal of the assessment order passed by AO does not show any application of mind on his part. The evidence available on record is not enough to hold that the return of the assessee was objectively examined or considered by the AO as an order becomes erroneous because inquiries, which ought to have been made on the facts of the case, were not made and not because there is anything wrong with the order if all the facts stated or the claims made in the return are assumed to be correct. Thus, it is mere failure on the part of the Assessing Officer to make the necessary inquiries or to examine the claim made by the assessee in accordance with law, which renders the resultant order erroneous and prejudicial to the interest of the revenue. Nothing more is required to be established in such a case. Adverting to the facts of the present case, there is no enquiry by the AO as he just accepted the claim of set off of earlier year unabsorbed depreciation in the assessment year under consideration. The argument of the assessee that there are decisions in favour of the assessee. Therefore, the view adopted by the AO is one of the possible views. The general law on the question of revisional jurisdiction is that an order passed by the AO cannot be held to be erroneous, if the AO has followed one of the possible views on the subject. But in this case the AO not adopted any view on the issue raised by the CIT. Further, the assessee's counsel harped upon that the bonus shares of 56,400 were allotted to the assessee in relation to original equity shares of 28,200 and 14,408 bonus shares were allotted with regard to original shares held by the assessee at 8,209. In support of this, the assessee filed a letter dated 27th November, 2012 from Megasoft Ltd., Chennai. Carefully going through the arguments as well as contents of the letter from Megasoft Ltd. & comparing this letter with the Demat account it is noticed that as on 14th August, 2000 the assessee is holding only 8,209 shares. Consequent to this on 21st September, 2000 the assessee got bonus offer at 16,418 shares. Thus, the total balance on this date is at 24,627 shares. Later, on 27th September, 2000 there was an entry by transaction No. 3238 with narration "by transaction No. 3238 by corporation action" at 56,400 shares. It is to be noted herein that there is no mention of anything about bonus offer or mention of any original shares in relation to which 56,400 shares were allotted. The argument of the assessee's counsel is totally misleading and faraway from truth. Being so, not in a position to give any credit to the letter filed by the assessee from Megasoft Ltd., as the Demat account having no mention about the original shares of 28,200 against which purported to be bonus shares were allotted. On this issue, we have no hesitation to confirm the order of the CIT who has taken great pain in bringing the various true facts related with this issue. Regarding the other issue, the CIT has only given the direction to the AO to enquire and redo the assessment in accordance with law. No infirmity in the order of the CIT passed u/s. 263 and the same is confirmed - against assessee.
|