TMI Blog2022 (3) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and the case of the assessee is supported by the decision of Hon ble Bombay High Court in the case of CIT vs. Gabriel India Ltd.[ 1993 (4) TMI 55 - BOMBAY HIGH COURT] wherein the Hon ble Bombay High Court has held that the PCIT can not invoke the jurisdiction under section 263 of the Act merely on the ground that AO did not discuss the issue in the assessment order which indicated non application of mind as claim of the assessee required to be examined. - Decided in favour of assessee. - ITA No.926/M/2021 (Assessment Year: 2014-15) - - - Dated:- 5-1-2022 - SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER Assessee by : Shri Paresh Shaparia, A.R. Revenue by : Shri T. Kipgein, D.R. ORDER Per Rajesh Kumar, Accountant Member: The present appeal has been preferred by the assessee against the order dated 30.03.2021 of the Pr. Commissioner of Income Tax [hereinafter referred to as the PCIT] relevant to assessment year 2014-15. 2. The only common issue raised in the various grounds of appeal by the assessee is against the order of Ld. PCIT wrongly exercising jurisdiction u/s 263 of the Act holding the assessment fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 142(1) dated 03.11.2017 and 15.12.2017 were issued to the assessee calling for the same details which were replied vide written submission dated 18.12.2017 and 20.12.2017. Finally, a show cause notice was issued dated 20.12.2017 as to why the sale consideration of ₹ 3,51,91,068/- including long term capital gain claimed as exempt of ₹ 2,46,23,023/- should not be treated as non genuine and added to the income of the assessee under section 68 of the Act. The said show cause notice was replied vide written submission dated 26.12.2017. Finally, the assessment under section 143(3) read with section 147 of the Act was framed vide order dated 28.12.2017 accepting the returned income of the assessee. Thereafter, Ld. PCIT on examination of the assessment records came to the conclusion that assessee is beneficiary of bogus entries of long term capital gain as per the information received from Directorate of Investigation and Ld. PCIT also noted that the case of the assessee was reopened under section 147 of the Act on the ground that assessee has claimed bogus long term capital gain as exempt under section 10(38) of the Act resulting from the sale of shares of ICVL Chemical Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of long term capital gain on sale of shares of ICVL Chemical Ltd. after the AO received information from Directorate of Investigation that the huge racket of bogus long term capital gain is being operated all over India in an organized manner. The Ld. A.R. submitted that during the course of re-assessment proceedings, the AO examined the issue in great length by referring to the notices issued under section 142(1) dated 06.07.2017, 23.08.2017, 03.11.2017 15.12.2017 and show cause notice was issued finally on 20.12.2017 calling upon the assessee as to why the same should not treated as bogus and added u/s 68 of the Act to the income of the assessee. The assessee replied to the above notices issued u/s 142(1) and show cause notice vide written submission dated 11.08.2017, 11.09.2017, 18.12.2017, 20.12.2017 and 26.12.2017 giving detailed information as desired by the AO. The AO after taking into account the replies of the assessee including reply dated 26.12.2107 which was given in response to show cause notice issued on 20.12.2017 accepted the contentions of the assessee and thus framed the assessment accordingly accepting the returned income. The Ld. A.R. submitted that this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in view of these facts the revisionary jurisdiction of the Ld. PCIT and consequent order passed may kindly be passed. 5. The Ld. D.R., on the other hand, relied heavily on the order of Ld. PCIT by submitting that this was a case of organized scam which yielded bogus long term capital gain on sale of shares all over India which has been brought to light by Directorate of Investigation after conducting a detailed enquiry. The Ld. D.R. while admitting that the case of the assessee was reopened under section 147 of the Act on the specific issue of bogus long term capital gain on sale of shares of ICVL Chemical Ltd. and also admitted that the AO has issued as many as four notices under section 142(1) of the Act calling for the details qua the sale of shares and necessary evidences from the assessee in respect of sale of shares of ICVL Chemical Ltd. which were furnished before the AO. However, the Ld. D.R. maintained that the AO has not conducted adequate enquiry into the issue and therefore the Ld. PCIT has rightly exercised the revisionary jurisdiction under section 263 of the Act. The Ld. D.R. therefore prayed that the appeal of the assessee may kindly be dismissed as no prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and AO has accepted the claim of the assessee as genuine. Under these circumstances, we do not find any reason as to why the jurisdiction exercised by the Ld. PCIT under section 263 of the Act is valid as the AO, after examining the issue in detail, has taken one of the possible views on the matter. This is not a case of wrong appreciation of facts or wrong application of law by the AO. The case of the assessee is supported by the various decisions as referred before us during the course of hearing. In the case of Ld. PCIT vs. Sumatichand Tolamal Gouti (supra) the Hon'ble Apex Court has dismissed the SLP filed by the Revenue by upholding the order of High Court. The Hon ble High Court has upheld the order of Tribunal wherein the co-ordinate Bench of the Tribunal has set aside the revisionary order passed by Ld. PCIT by holding that AO has carried out detailed enquiries and taken a plausible view. Similarly, in the case of PCIT vs. V. Dhana Reddy Co. (supra) the SLP was dismissed by the Hon ble Supreme Court. In this case the Hon ble High Court has opined that AO has treated the renting of godown as integral part of business of the assessee and view taken by the AO was a pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
