TMI Blog2022 (11) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... he genuineness of the transactions to prove that it had not indulged in any dubious share transactions meant to account for undisclosed income under the garb of long term capital against (LTCG) to claim exemption under Section 10 (38) - HELD THAT:- In the cases on hand there is nothing on record to show that such an exercise was done by the PCIT. Tribunal after noting several decisions on the subject rendered by the Coordinate Benches of the Tribunal had allowed the assessee s appeal and set aside the order passed by the PCIT under Section 263 - Tribunal has proceeded to examine the merits of the matter and granted relief. It is the submission that so far as the merit of the cases are concerned similar issue was tested by this Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and, accordingly, the appeal filed by the revenue is dismissed. - THE HON BLE JUSTICE T. S. SIVAGNANAM And THE HON BLE JUSTICE HIRANMAY BHATTACHARYYA Mr. Tilak Mitra, Adv. for appellant Mr. Subhas Agarwal, Adv for respondent ORDER The Court :- We have heard learned counsel appearing for the respective parties. We have perused the affidavit filed in support of the petition and found sufficient cause has been shown for condonation of delay. Accordingly, the application is allowed and the delay in filing the appeal is condoned. These appeals have been filed by the revenue under Section 260A of the Income Tax Act, 1961 (the Act) challenging the orders passed by the Income Tax Appellate Tribunal in various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration: i] Whether the learned Tribunal has erred in law and failed to appreciate that the assessee could not substantiate the genuineness of the transaction to prove that it had not in dubious share transaction meant to account for undisclosed income in the garb of Long Term Capital Gain [LTGC] to claim exemption under section 10[38] of the Act ? ii] Whether the learned Tribunal has erred in law while allowing the assessee s appeal of claim of exemption under section 10[38] without holding that the official transaction of purchase and sale of shares of penny stock companies namely Baviscon Vincom Pvt. Ltd. later amalgamated with Unno Industries Ltd. was adventure in nature of trade, thus same was to be taxed as business income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g powers under Section 263 of the Act the PCIT has to bear in mind the twin conditions are to be conjointly fulfilled. Therefore, before exercise of power under Section 263 it is the PCIT who has to apply its mind to the issue and thereafter record reasons as to how the twin conditions are satisfied and then issue a show-cause notice to the assessee. In the cases on hand there is nothing on record to show that such an exercise was done by the PCIT. Therefore, learned Tribunal after noting several decisions on the subject rendered by the Coordinate Benches of the Tribunal had allowed the assessee s appeal and set aside the order passed by the PCIT under Section 263 of the Act. Thereafter, the learned Tribunal has proceeded to examine the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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