TMI Blog2021 (1) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order. We herein uphold the order passed by the Pr.CIT under Sec. 263 though subject to the modification stated hereinabove. - ITA No. 5553/Mum/2018 - - - Dated:- 4-1-2021 - Shri M. Balaganesh, Accountant Member And Shri Ravish Sood, Judicial Member For the Appellant : Shri Va llabh Parmar, A.R For the Respondent : Shri Purushottam Tripuri, CIT D.R ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the Principal Commissioner of Income Tax-28, Mumbai (hereinafter referred to as Pr. CIT ) under Sec. 263 of the Income Tax Act, 1961 (for short Act ) dated 27.02.2018 for A.Y. 2014-15. The assessee has assailed the impugned order on the following grounds of appeal before us: 1. On facts and circumstances of the case and in law Ld. Pr. CIT erred in setting aside the order of AO u/s 143(3) dated 30-06-2016 and directing the AO to pass fresh assessment order in accordance with the law. 2. On facts and circumstances of the case and-in law Ld. Pr. CIT erred in setting aside the order of AO u/s 143(3) dated 30-06-2016 and directing the AO to pass fresh assessment order in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased 500 shares of M/s Ravinay Trading Corporation Ltd. (Nyssacorp) on 07.08.2012 for ₹ 9,03,759.35, which after a lapse of one year were sold by him on different dates with a resultant profit of ₹ 59,48,750/-, as under: Name Date of purchase Qty Purchase cost Sales date Qty Amount Profit LTCG/STCG Nyssacorp 07.08.2012 50000 903759 30.10.2013 10000 1367853.31 12.11.2013 10000 1342937.94 10.12.2013 7738 1064270.14 12.12.2013 2454 340946.25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infoline Ltd., copy of return of income and balance sheet were duly filed in the course of the assessment proceedings. Apart from that, it was the claim of the assessee that the aforesaid share transaction of purchase and sale of shares was carried out by his broker viz. India Infoline Ltd. through recognized stock exchange. It was the claim of the assessee that as the A.O while framing the assessment had only after vetting the aforesaid share transactions to his satisfaction accepted the same, therefore, the Pr. CIT was divested of his jurisdiction to revise the assessment order u/s 263 of the Act. 5. After deliberating on the contentions advanced by the assessee the Pr.CIT was however not persuaded to subscribe to the same. Observing, that the A.O while framing the assessment had failed to verify the genuineness /correctness of the aforesaid share transactions and had summarily allowed the assessee s claim of exemption of ₹ 58,56,466/- under Sec.10(38), the Pr. CIT was of the view that the assessment order passed by him u/s 143(3), dated 30.06.2016 was rendered as erroneous insofar it was prejudicial to the interest of the revenue within the meaning of Sec.263 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seeking of condonation of delay in filing of the present appeal by the assessee. 8. We have heard the authorized representatives for both the parties and perused the material available on record. In our considered view the fact that the delay in filing of the present appeal had occasioned on account of failure on the part of the assessee s employee viz. Shri Jitesh Chauhan who had inadvertently failed to timely deliver the impugned order to the assessee is substantiated from the aforesaid affidavits to which our attention had been drawn by the ld. A.R. In fact, the assessee s employee viz. Sh. Jitesh Chauhan had in his affidavit categorically admitted that the delay in delivering the impugned order was on account of an inadvertent lapse on his part. In our considered view the delay in filing of the present appeal does not smack of any malafide or lackadaisical approach on the part of the assessee but is backed by an inadvertent lapse on the part of his employee. In the backdrop of the aforesaid facts we are of a strong conviction that as there is a justifiable reason explaining the delay of 142 days involved in filing of the present appeal by the assessee, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as raised by the assessee, it was submitted by the ld. A.R that the very basis for revising of the assessment order was divorced from the basis on which the assessment order was initially sought to be revised by the Pr. CIT vide his SCN dated 12.09.2017. It was submitted by the ld. A.R that de hors affording of any opportunity of being heard to the assessee as regards the issue on which the assessment order had been set aside by the revisional authority, the order passed by the Pr. CIT could not be sustained and was liable to be struck down on the said count itself. It was further submitted by the ld. A.R that the Pr. CIT had exceeded his jurisdiction under Sec. 263 and only for the purpose of substituting his view as against that arrived at by the A.O had taken recourse to the proceedings under Sec. 263 of the Act. Apart from that, it was averred by the ld. A.R that merely because the assessment order did not contain an elaborate discussion as regards the verifications that were carried out by the A.O in respect of the share transactions under consideration, the same, thus, would by no means justify invocation of the provisions of Sec. 263 of the Act. In order to support his afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record as well as the judicial pronouncements pressed into service by the counsel for the assessee appellant. As is discernible from the records the assessee had claimed to have purchased 5000 shares of M/s Ravinay Trading Corpn. Ltd. (Nyssacorp) on 07.08.2012 for ₹ 9,03,759.35, which thereafter are stated to have been sold after a time gap of one year on different dates i.e 30.10.2013 to 19.12.2013 with a resultant profit of ₹ 59,48,750/-. LTCG arising on the sale of the aforesaid shares was claimed by the assessee in his return of income as exempt u/s 10(38) of the Act. On a perusal of the records, we find, that the A.O in the course of the assessment proceedings had neither queried the assessee as regards the aforesaid share transactions nor carried out any verifications pertaining to the same on his own. In fact, we find that though the assessee in reply to the notice issued under Sec. 142(1), dated 11.04.2016 had in pursuance to a query raised by the A.O as regards the additions in his capital account filed the contract notes and demat state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption of LTCG of ₹ 58,56,466/- under Sec.10(38), therefore, the Pr. CIT remaining well within the realm of his jurisdiction as contemplated in the Explanation 2(a) to Sec. 263 of the Act had rightly set aside the assessment order with a direction to the A.O to frame the same afresh after affording an opportunity of being heard to the assessee. At this stage, we may herein observe that the Pr.CIT while directing as hereinabove, had however, inadvertently directed the A.O to disallow the assessee s claim of exemption of LTCG of ₹ 58,56,466/- under Sec. 10(38) of the Act. As the aforesaid direction of the Pr. CIT clearly militates against his direction to the A.O to pass a fresh assessment order in accordance with law after affording an opportunity of being heard to the assessee, therefore, to the said extent the same cannot be sustained and is expunged from the impugned order. 13. In the backdrop of our aforesaid observations we herein uphold the order passed by the Pr.CIT under Sec. 263, dated 27.02.2018, though subject to the modification stated hereinabove. 14. Resultantly, the appeal filed by the assessee is partly allowed in terms of our aforesaid obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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