TMI Blog2022 (8) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that M/s. Godavari Exim Pvt. Ltd. was registered with MCX Stock Exchange which was a notified stock exchange. Since PCIT had travelled beyond what was the allegation in the show cause notice, the tribunal had to clarify the factual position. Therefore, a query has been raised to the learned Advocate who appeared for the assessee before the tribunal and it was submitted that after passing order u/s 263 Ld. Advocate had made enquiries in the stock exchange and found that the said M/s. Godavari Exim Pvt. Ltd. had surrendered its membership of MCX Stock Exchange and after surrendering the same it was engaged in transport business.' Assessee has produced before us a copy of the circular dated 8th September, 2016 which is a public no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal erred in not appreciating the fact that Pr. Commissioner of Income Tax in this order under section 263 clearly mentioned that the Assessing Officer made no enquiries on the issues mentioned in the order? ii) Whether on the facts and circumstances of the case and in law the Income Tax Appellate Tribunal erred in not appreciating that the assessment records also points out to the fact that the Assessing Officer had made no investigation on the fact of loss on dealing commodities of Rs.41,25,364/- claimed by the assessee as business expenses? iii) Whether on the facts and circumstances of the case and in law the Income Tax Appellate Tribunal erred in not appreciating that the order under section 143(3) of the act d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to and the assessee was informed that their case was not covered by any of the exceptions specified in the proviso to sub-Section (5) of Section 43 and, therefore, proposed that the loss claimed by the assessee was to be considered as a speculation loss and was not to be allowed. The assessee submitted their reply to the show cause notice firstly pointing out that M/s. Godavari Exim Pvt. Ltd. was a member of MCA Stock Exchange Ltd. In this regard the assessee referred to notification no.46 of 2009 dated 22nd May, 2009 which recognised MCX Stock Exchange Ltd. as an Exchange under clause (ii) of Explanation-2 to clause (d) of the proviso to sub-Section (5) of Section 43 of the Act read with Rule 6DDB of the Income Tax Rules, 1962. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred appeal before the tribunal which was allowed. Firstly, we note that the allegation in the show cause notice is confined to whether the transaction should be treated as a speculation loss or not. Admittedly, documents were placed by the assessee stating that M/s. Godavari Exim Pvt. Ltd. was registered with MCX Stock Exchange Ltd. which is a notified stock exchange. This position could not be disputed by the PCIT and, therefore, proceeded on a different angle which were not the materials based on which show cause notice was issued. Thus, a fundamental error has been committed by the PCIT by proceeding based upon certain alleged facts which were never brought on record at the time of issuance of the show cause notice. When the matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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