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2024 (1) TMI 1270 - ITAT JODHPURValidity of reopening of assessment proceedings u/s 147 - reasons to believe - claim of exemption u/s 10(38) denied - borrowed satisfaction of another AO or Independent application of mind - HELD THAT:- CIT(A) has rightly upheld the initiation of the proceedings, by observing that the inputs received from the Investigation Wing constituted fresh material for the AO in order to reopen the case by issue of notice u/s 148 and that the AO has recorded reasons and had also taken due approval of PCIT. Therefore, the contention raised by the appellant has no reasonable basis. Accordingly, we hold that the information received from investigation wing would be forming a valid basis for initiation of reopening proceedings u/s 147 of the Act. Accordingly, the ground regarding validity u/s 147 is dismissed. Denial of Exemption u/s 10(38) - unexplained cash credit u/s 68 - It is seen that all the necessary documents and details were duly submitted before the authorities below, which were neither controverted or disproved. We are of the considered view that the assessee has discharged the primary onus casted on him in terms of claim of exemption of long-term capital gains u/s 10(38) of the Act by establishing the genuineness of transaction of purchase and sale of shares and satisfying the requisite conditions specified therein and therefore, the gains so arising on sale of shares has been rightly claimed as exempt u/s 10(38) of the Act. For instance, in the case of another assessee Shri Mohd. Sharif, Pali (Rajasthan) and Abhay Kumar Kuldeep Kumar HUF, on similar facts and circumstances, department has reopened assessment u/s 148 for the same reasons as of the assessee but assessments were closed by allowing exemption u/s 10(38) on sale of shares of M/s ACI Infocom Ltd. In our view, the action of the authorities below not allowing exemption u/s 10(38) to the assessee on the same facts and circumstances is bad in law and against the principles of natural justice. The order of the Ld. CIT(A) is infirm and perverse to the facts on record in rejecting the appellants claim of exemption u/s 10(38) of the Act. In view of peculiar facts of the case, we set-aside the order of the learned CIT(A) and as such allow the claim of the assessee under section 10(38) of the act. The 2nd issue of exemption u/s 10(38) of the act is thus decided in favour of the assessee.
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