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2021 (1) TMI 679 - AT - Income TaxRevision u/s 263 - Bogus LTCG - addition of the entire sale proceeds of the shares as income and rejection of claim of exemption made u/s 10(38) - HELD THAT:- Assessee furnished all the documents called for and after considering the same the AO accepted the claim of the assessee exemption u/s 10(38) of the Act as the profits earned from purchase and sale of transfer. Nothing adverse was found by the AO during the course of assessment proceedings. Even the ld. PCIT, except the alleged report of DIT(INV), Kolkata no fresh evidence was referred to. This report of DIT(INV), Kolkata vide Note No. 75A/12015-161257 dated 27.04.2015 is not brought on record. The PCIT similarly states that there is a report of the DIT(INV) Kolkata and hence the assessment order is erronerous. The issue is whether the assessment order so passed is erroneous insofar as it is prejudicial to the interest of revenue. This is not the case of lack of enquiry as alleged ld. PCIT. In fact enquiry was conducted by the AO after obtaining all required details. The ld. PCIT himself said that report of DIT(INV), Kolkata was not before the AO. Thus, the order passed by the AO by taking into account a document or information which is not before him and based on the enquiry and documents before him in a possible view and the assessment order and cannot be held to be erroneous insofar as it is prejudicial to the interest of the revenue. As relying on M/S GITSH TIKMANI case [2019 (9) TMI 1177 - ITAT KOLKATA] the order passed u/s 263 of the Act is bad in law. The coordinate Bench of ITAT, Kolkata in the case of Shashi Bala Bajaj [2018 (11) TMI 1823 - ITAT KOLKATA]applied to the judgment of CIT vs. Bhagwati Prasad Agarwal [2009 (4) TMI 138 - CALCUTTA HIGH COURT] and held that the long term profits and gains received on, the purchase and sale of shares of M/s Surbhi Chemicals and Investment Ltd. though the Stock Exchange is exempted from tax u/s 10(38) of the Act. Thus, the view taken by the AO is plausible view which is supported by judicial decisions on this grounds also the order u/s 263 fails. - Decided in favour of assessee.
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