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2019 (11) TMI 1823 - ITAT KOLKATARevision u/s 263 by CIT - unexplained cash credits u/s. 68 - swapping of shares - second round of revision proceedings - as per CIT AO had not verified genuineness of the investments made in the assessee’s shares as well as its purchases of unquoted shares in various private limited companies alongwith loans and advances - HELD THAT:- We find that the assessee as well as all the six parties had swapped their shares than passing any cash credits in the respective accounts of all the six parties. They had not exchanged any consideration since the parties transferred their shareholdings to each other. This clinching fact has nowhere been rebutted at the Revenue’s behest. CIT-DR’s strongly contended that this issue cannot be raised in the instant second round of revision proceedings. We find no force in the Revenue’s instant plea since the assessee had objected to the CIT’s former revision proceedings qua the instant legal aspect as it is evident from a perusal of said order. The question as to whether such a swapping of shares invites unexplained cash credits addition u/s. 68 or not stands answered in assessee’s favour in ITO Ward-5(3) Kolkata vs. M/s Bhagwat Marcom Pvt. Ltd [2019 (8) TMI 649 - ITAT KOLKATA] wherein as held when the cash did not pass at any stage and since the respective parties did not receive cash nor did pay any cash, there was no real credit of cash in the cash book and the question of inclusion of the amount of the entry as unexplained cash credit could not arise. We are of the view that even if the latter assessment accepting assessee’s share applications / premium is held erroneous the same does not cause any prejudicial to the interest of the Revenue therefore. Hon'ble apex court’s landmark decision in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] settled the law long back that the CIT must satisfy himself that the assessment forming the subject-matter of revision simultaneously satisfies both limbs of erroneous as well as causing prejudice to interest of the revenue. We therefore accept assessee’s arguments and restore the Assessing Officer’s latter assessment order - Decided in favour of assessee.
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