TMI Blog2014 (1) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... see and he has observed that adequate enquiry has not been made about the genuineness of the company as 7000 shares were purchased - These documents were produced by the assessee before the AO during the course of assessment proceedings, hence, it cannot be said that either the AO did not enquire about the issue of capital gain arising out of sale & purchase of shares or assessee did not furnish required information - The transactions are duly supported by the bills issued by the broker and are through stock exchange for which appropriate evidences were submitted. Section 263 has been invoked only for the reason that the AO did not apply his mind on these transactions - This finding of the learned CIT is against the correspondence and evidences which are placed on record by the assessee during the course of original assessment proceedings and copy of these documents are also filed before the Tribunal - Learned CIT also could not specify any discrepancy either in the rates of shares purchased and sold by the assessee or any incorrectness in the claim of the assessee regarding capital gain shown by the assessee as all the facts were again placed before him - In absence of any mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased and sold, name; address and PAN of brokers, contract notes form 10 DB were duly furnished to the Assessing Officer. d) On the facts of the case and in Law, the learned ClT has erred in disregarding the fact that 26,000 shares of Prraneta Industries Ltd. were kept in physical from at the time of purchase and thereafter they were split into share of Re.1 each and thereafter the shares were dematerialized. e) On the facts of the case and in Law, the learned ClT has erred in disregarding the fact that 7,000 shares of Hiren Orgochem Ltd. only were pertaining to the Appellant and demat a/c confirmed the reversal of remaining 3,500 shares. f) On the facts of the case and in Law, the learned ClT has erred in overlooking various judgments pronounced by the different Courts. 3. Section 263 has been invoked by learned CIT on two issues, which are as under :- i) Regarding 26000 shares of Prraneta Industries Ltd. (PI) which was shown to be purchased in cash for ₹ 35,095/- on 6-4- 2004 and kept in physical form. Subsequently, these shares were split off by the company from the face value of ₹ 10/- to Re.1/-. As per copy of demat account with NSDL, assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er book. Vide letter dated 3-9-2007, the assessee requested to issue questionnaire, copy of which has been placed at page 23 of the paper book. Accordingly, the AO issued notice to the assessee, which is dated 10-10-2007, copy of which has been placed at page 24 of the paper book. The assessee was required to furnish various explanation and specific queries were raised regarding share transactions of the assessee and earning capital gain therefrom. Ld. AR invited our attention to the queries No.6 7 in the notice issued on 10-10-2007, which are as under :- x x x x x x x 6. Details of trading sales and purchases with quantity, value and rates in shares and debentures (with copies of brokers note). Name of the brokers and who sold and purchased shares on behalf of you. a) Please give the details of share transactions made by you with Bank statement showing the payment received and paid. b) Please give date wise details of purchased and sale of share. c) Details of Capital gain/loss d) Details of investment made in movable and immovable properties during the previous year. Details of trading sales and purchases with quantity value and rates in shares and debentures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) 31 SOT 278 (2009) (Neelam Mercantile (P) Ltd. Vs. ITO); ii) 21 SOT 111(2008) (ECD Electronics Electrolysis Pvt. Ltd. Vs. CIT); iii) 108 ITD 321 (2007) (Habibullah Khanyari Vs DCIT); iv) 86 TTJ 1095 (Mrs. Khatiza S. Oommerbhoy Vs. ITO); v) 16 SOT 119 (Girdhari Lal B. Rohra Vs. CIT); vi) 50 TTJ 64 (Decorous Investment Trading Co. Ltd. Vs. ACIT) vii 125 TTJ 64 (Rajiv Agnihotri Vs. CIT) C. Mere non discussion in assessment order does not mean to non application of mind : i) 177 Taxmann 9(2009) (CIT Vs. Design Automation Engineers (Bombay) (P) Ltd.) ii) 180 Taxmann 623 (CIT Vs. Ashish Rajpal); iii) 13 SOT 600 (2012) (Birla Global Finance Ltd. Vs. ACIT); iv) 54 SOT 7 (2012) (Nariman Point Building Services Trading (P) Ltd. Vs. CIT); v) 34 SOT 245 (Reliance Communications Infrastructure Ltd. Vs. CIT); vi) 88 ITD 118 (2004) (Dhruv N. Shah Vs. DCIT); vii) 22 SOT 68 (Ahalya Trading (P) Ltd. Vs. CIT); viii) 18 SOT 1 (2007) (F.A.A. Jasdanwalla Vs. CIT) Particular reference was made to the decision in the case of Dhruv N. Shah Vs. DCIT, 88 ITD 118 (Mum), wherein it has been held that if the order of AO does not contain detailed di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t relates to share purchased by the assessee from Prraneta Industries, the assessee has filed the proof of purchases in the shape of ledger account in the name of DPS Shares Securities Pvt. Ltd. Copy of this ledger account has been placed at page 29 of the paper book. The assessee also submitted copy of physical shares of Prraneta Lease and Finance Limited, which is placed at pages 68 to 71 of the paper book. At page 68 of the paper book, 8700 shares of face value of ₹ 10/- were registered in the name of Darshan R Vadalia. These were transferred in the name of assessee on 18th May, 2004 by the company. Similarly, at page 69, 17300 shares of face value of ₹ 10/- were allotted in the name of Neetaben Navneetbhai Vadalia, which was transferred in the name of assessee on 18th May, 2004. At page 70, after split, 87000 shares were issued in the name of assessee on 20-4-2005, in lieu of 8700 shares. At page 71, share certificate of 173000 shares allotted to assessee on 20-4-05 in lieu of 173000 is attached. There is a change in the name of the company from Prraneta Lease and Finance Ltd. to Prraneta Industries Ltd. However, Registered Folio number of the assessee remains same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sold by the assessee or any incorrectness in the claim of the assessee regarding capital gain shown by the assessee as all the facts were again placed before him. In absence of any material to suggest that these transactions were not valid/genuine transactions, it will mere be a case of a change of opinion by the learned CIT. On the basis of information submitted by the assessee during the course of assessment proceedings, if the AO has formed an opinion, which is not unsustainable in law, Section 263 cannot be invoked just for the reason that the Commissioner has some different view. The case laws submitted by the learned AR duly support this proposition. 12. Similarly, when during the course of assessment proceedings the AO has sought explanation of the assessee on some issue by requiring the assessee to furnish evidence to support its case and the same are shown to be furnished by the assessee, then mere non-discussion of the said issue by the AO in the assessment order, cannot lead to a conclusion that the AO has not applied his mind on that issue and such proposition is also supported by the case law relied upon by the learned AR. 13. In view of above discussion, we ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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