2018 (11) TMI 1928 - AT - Income Tax

Revision u/s 263 - AO failed to enquire into the details long term capital gains arising on sale of equity shares - HELD THAT:- Undoubtedly, the AO raised the specific query which was replied specifically alongwith relevant documents by the assessee. AO being satisfied with the query so raised and the documents so filed in support of various contentions did not make any adverse observation in the assessment order. Merely non discussion of the issue in the order nowhere make the assessment order as erroneous and prejudicial to the interest of the revenue.

In response to the enquiry during asst. proceedings, the assessee submitted the details of working of long term capital gains alongwith relevant supporting documents and explained that the sale of equity shares was through recognized stock exchange and STT was also paid on the said sale. The AO thereafter raised a query with regards to difference in sale consideration, as reported in ITS statement and as per the brokers ledger account submitted by the assessee.

Once it is found that the AO had made proper inquiry of issue under consideration. Moreover, on appraisal of the notice, we noticed that the commissioner has taken cognizance on account of this fact that the Sunrise Asian Ltd. has been marked in the list of penny stock company but nowhere has proved or discussed that the transaction with the penny stock company is against law and facts.

There is nothing on record in which circumstances, the order passed by AO can be branded as erroneous and prejudicial to the interest of the revenue. It is mandatory on the part of the commissioner to arrive at this conclusion that the order as passed by AO is erroneous, which he did not hold.

Asit is apparent on record that the AO has asked the query which was properly replied by assessee along with necessary documents, therefore, after his satisfaction, the AO nowhere made an adverse remark in the order but a legally tenable view has been taken so the commissioner has no power to invoke the provision u/s 263 of the Act in view of the law settled in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT], MAX INDIA LTD. [2007 (11) TMI 12 - SUPREME COURT] and GABRIEL INDIA LIMITED [1993 (4) TMI 55 - BOMBAY HIGH COURT] - Appeal of assessee allowed.