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2019 (12) TMI 448 - AT - Income TaxRevision u/s 263 - addition on account of surrender by the assessee its claim of exemption u/s 10(38) - A.O. only disallowed the exemption claimed u/s 10(38) but did not treat income from other sources as undisclosed income u/s 68 and chargeable to tax u/s 115BBE - Pr. CIT, the investment made in the transaction would have been taxed as unexplained investment, which was required to be added u/s 68 of the Act and chargeable to tax u/s 115BBE - HELD THAT:- The law is well settled that power conferred u/s 263 can be exercised where the order is erroneous, so far it is prejudicial to the interest of the revenue. Therefore, there has to be satisfaction of two conditions, firstly, the assessment order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the revenue. In the present case, Pr. CIT revised assessment on the ground that the A.O. has not carried out any investigation regarding the transactions of sale and purchase of shares of company namely M/s. Turba Tek Engineers. The case of the assessee that the transaction is effected through stock exchange, all related evidences have been filed. There is no adverse material regarding transactions carried out by the assessee. There is no specific finding/statement of any third party against the assessee. It is also stated that name of the assessee nowhere figures in any of the statement. Under these facts, Ld. Pr. CIT was not justified in invoking the provisions of section 263. Since the A.O. has treated the transaction as long term capital gain, therefore, in light of the judgement of DG HOUSING PROJECTS LTD [2012 (3) TMI 227 - DELHI HIGH COURT] Pr. CIT should have brought some material rebutting the view adopted by the A.O., which has not been done. The issue is simply restored to the A.O. for making enquiry. For this reason, action of the CIT cannot be sustained. Hence, grounds raised in the appeal are allowed. The impugned order is quashed. Appeal filed by the assessee is allowed.
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