TMI Blog2021 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... shares as well as the bank statement showing the transaction made through banking channel. There is no material on record to suggest that the payment made of ₹ 2,00,000 through cheque towards purchase cost has been routed back to the assessee. There is nothing on record to suggest that the assessee has paid commission for obtaining accommodation entry. A reading of the impugned order passed under section 263 of the Act reveals that merely on presumption and surmises learned PCIT has assumed jurisdiction under section 263 of the Act. It is also evident, before the revisionary authority assessee has specifically stated that all relevant materials including evidence for payment made towards purchase cost were furnished before the AO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,953/-, which was offered under Income Disclosure Scheme 2016 (IDS) and tax due was paid. Thus, based on such information, and following CBDT Instruction No. 12 of 2016 dated 11.11.2016, the AO completed the assessment under section 143(3) of the Act accepting the income returned by the assessee. Subsequently, in exercise of power conferred under section 263 of the Act, learned Pr. CIT called for and examined the assessment records of the assessee for the impugned assessment year. After examining the assessment record, he was of the view that the assessment order passed is erroneous and prejudicial to the interest of revenue as the AO has not added the entire sale consideration of ₹ 1,25,67,400/- without deducting purchase cost and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, he submitted, merely on presumption surmises it cannot be said that the assessee has paid commission for obtaining accommodation entry relating to long term capital gain. In support of such contention, learned Counsel relied upon the following decisions:- i. Manju Osatwal Vs. Pr. CIT-10, Kol in ITA No. 707/Kol/2019 dt. 15/01/2020 ii. Mrs. Manisha Ajay Shah Vs. Pr. CIT-30, Mumbai in ITA No. 3001/Mum/2019 dt. 14/10/2020 iii. Mr. Akshay Ramprasad Agarwal Vs. ITO 17(1)(1), Mumbai in ITA No. 153/Mum/2021 dt. 08/10/2021. 4. Learned Departmental Representative strongly relying upon the observations of the learned PCIT submitted, once it is found that the long term capital gain is in respect of a penny stock company, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmodation entry. A reading of the impugned order passed under section 263 of the Act reveals that merely on presumption and surmises learned PCIT has assumed jurisdiction under section 263 of the Act. It is also evident, before the revisionary authority assessee has specifically stated that all relevant materials including evidence for payment made towards purchase cost were furnished before the AO. Therefore, it cannot be said that the AO has not enquired into the issue. It could be a fact that after considering the materials available on record the AO was satisfied that the assessee had incurred the expenditure towards cost of the shares. That being a plausible view, cannot be termed as erroneous. Further, we find that the issue is square ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through cheque. This is further corroborated by share application form of GCM Securities at page 22 of the Paper Book and transaction-cum-holding statement in the case of assessee issued by Stock Holding Corporation of India Ltd. at page 19 of the Paper Book. The documents furnished by the assessee clearly indicates that the shares were indeed purchased by the assessee through banking transactions. It is not the case of the Revenue that the amount paid by the assessee for purchase of shares has travelled back to the assessee in the form of cash or any other manner. 6. The provisions of section 263 of the Act can be invoked if, the twin conditions mandated under the section are satisfied, i.e: (i) the order of the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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