Income Tax Appellate Tribunal - Jaipur
Shri Vinay Kumar Sogani, Jaipur vs Pr. Commissioner Of Income Tax, ... on 26 July, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 444/JP/2018
fu/kZkj.k o"kZ@Assessment Year : 2013-14
Shri Vinay Kumar Sogani, cuke The Pr. CIT,
1-AB-1, Chameliwala Market, Vs. Jaipur-1,
M.I. Road. Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AGWPS 9844 C
vihykFkhZ@Appellant izR;FkhZ@Respondent
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s Assessee by : Shri S. L. Poddar (Adv.) &
Miss Esha Kanungo (Adv.)
jktLo dh vksj ls@ Revenue by : Shri Varinder Mehta (CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 13/06/2018
mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 26/07/2018
vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the revision order passed U/s 263 of the IT Act dated 09.03.2018 of the ld. Pr. CIT for the assessment year 2013-14. The assessee has raised the following grounds:-
1. In the facts and circumstances of the case the learned Pr.
CIT, Jaipur-I, Jaipur has erred in passing the order u/s 263 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT of the Income Tax Act, 1961 which is void ab-initio deserves to be quashed.
2. In the facts and circumstances of the case the learned Pr. CIT, Jaipur-I, Jaipur has erred in holding that the order passed by Learned Assessing Officer u/s 143(3) of the Income Tax Act, 1961 dated 20.03.2016 was erroneous and prejudice to the interest of the revenue.
3. In the facts and circumstances of the case the learned Pr. CIT, Jaipur-I, Jaipur has erred in holding that the Assessing Officer has not done verification regarding genuineness of the claim of the deduction u/s 10(38) of the Income Tax Act, 1961.
4. In the facts and circumstances of the case the learned Pr. CIT, Jaipur-I, Jaipur has erred in holding that the information dated 15.03.2016 dispatched from Patna was available with the Assessing Officer at the time of completion of the assessment on 20.03.2016.
5. The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing."
2. The brief facts leading to the controversy emerged from the record are that the assessee filed his return of income for the assessment year under consideration on 27.09.2013 declaring total income of Rs. 21,25,780/-. The AO completed scrutiny assessment U/s 143(3) on 20.03.2016 on the total income as return by the assessee. Thereafter the Pr. CIT on examination of assessment record noticed 2 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT that the AO has carried out the scrutiny of return income only in relation to the exempt investment for disallowance U/s 14A of the Act and therefore, the AO has not conducted a proper enquiry regarding the claim of exemption U/s 10(38) of the IT Act in respect of long term capital gain arising from sale of shares of M/s Indian Info Tech and Software Ltd. The Commissioner further noted that the CIB (I&CI) information clearly mentions penny stock manipulation while giving details of transaction regarding the sale of script by the assessee. A critical examination of facts regarding this was required. The Pr. CIT accordingly issued a show cause notice U/s 263 of the Act dated 12.02.2018 to revise the assessment on the issue of claim of exemption U/s 10(38) of the Act allowed by the AO without verification viz-a viz the information available renders the order of the AO as erroneous and prejudicial to the interest of the Revenue. The assessee filed its reply on 28.02.2018 to the show cause notice issued U/s 263 of the Act and submitted that during the course of scrutiny assessment the AO raised the queries by issuing notice U/s 142(1) and the AO has specially asked the explanation and supporting evidence on the claim of exemption U/s 10(38) of the Act. In reply to the notice issued by the AO, the assessee submitted various documents which were again listed in the reply filed 3 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT by the assessee to the show cause notice U/s 263 of the Act. Thus, the assessee contended before the ld. Pr. CIT that the documents filed by the assessee during the assessment proceedings were verified by the AO and thereafter AO allowed the claim of the assessee which is genuine and as per provisions of the law. The assessee also raised objections against the CIB (I&CI) report and submitted that the alleged report mentioned in the show cause notice was not available at the time of completion of the assessment order. Thus, it was pleaded that the proceedings U/s 263 may be dropped. The ld. Pr. CIT did not accept the contention of the assessee and held that a routine acceptance of material submitted by the assessee without further analysis indicates a failure on the part of the Assessing officer in making a correct assessment in the case of the assessee. Thus, the Pr. CIT held that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the Revenue and liable to be revised U/s 263 of the IT Act. Accordingly, the Pr. CIT set aside the issue of exemption U/s 10(38) of the IT Act to the record of the Assessing Officer to assess the case denovo in accordance with law after making necessary enquiry, examination and verification. It was also directed to consider the information received from the office of DIT, Patna dated 15.03.2018 4 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT regarding availing of accommodation entry by the assessee. Aggrieved by the impugned order of the ld. Pr. CIT the assessee has filed present appeal.
3. Before us, the ld. AR of the assessee has submitted the ld. Pr. CIT invoked the provisions of Section 263 of the Act on the basis of the information of CIB as well as the report of the Investigation Wing, Patna which were not available with the AO at the time of completion of the assessment. Therefore, subsequent reports of Investigation Wing, Patna would not render the order of the Assessing Officer erroneous and prejudicial to the interest of the Revenue when the AO during the scrutiny assessment called all the details relevant to the claim of exemption U/s 10(38) of the Act and the assessee produced all the supporting evidences for verification of the AO and after AO satisfied himself the claim of the assessee was allowed though the Assessing Officer has not discussed the issue in the assessment order. The ld. AR has referred to the notice U/s 142(1) of the Act dated 01.11.2015 issued by the AO and submitted that as per question at serial No. 14 the AO has asked the assessee to furnish complete details and computation of long term capital gain claimed as exempt U/s 10(38) of the Act. The AO has also specified the record which was required to be 5 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT furnished for verification which includes copy of demat account from 01.04.2010 to 31.03.2013, contact note/share certificate for purchase of security along with mode of payment, details of stock exchange in which securities are registered, details of STT paid on the transaction, complete address of share broker, copy of account in the books of the broker through which transaction has been carried out, annual report of the company whose securities were sold during the relevant period, details of sale of securities along with mode of payments. Thus, the ld. AR has submitted that the Assessing Officer has called for all relevant materials and evidences in support of the claim of exemption U/s 10(38) of the Act. In response the assessee filed the relevant record as called by the AO which includes the bank statement highlighting the payment made by the assessee for purchase of the shares, contract note, D-mat account, details of stock exchange, STT paid and particulars of brokers. The ld. AR has referred to the copy of purchase bills of shares dated 01.02.2011, copy of receipt issued by M/s Chin Purni Sales Pvt. Ltd. dated 12.09.2011, copy of bank statement reflecting payment to M/s Chin Purni Sales Pvt. Ltd., copy of ledger account of Lambodar Nirmit Ltd. whose shares were purchased by the assessee. Subsequently the said company was merged with M/s Indian 6 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT Info Tech and Software Ltd. The ld. AR has also referred ledger account of M/s Indian Info Tech and Software Ltd., copy of shares certificate, copy of share transfer advise, copy of Dematerialization application, copy of Demat account statement showing shares M/s Lamodar Nirmit Ltd., copy of letter received for approval of scheme of merger, copy of order of Hon'ble Bombay High Court approving the scheme of merger of M/s Lambodar Nirmit Ltd. and Indian Info Tech & Software Ltd. He has further pointed out that the shares were duly de-materialized and reflected in the demat account of the assessee and thereafter, the shares were sold as per the sale contract note. He has referred copy of the financial ledger in the books of SEBI registered broker and copy of bank statement of the assessee reflecting credit entries of sale proceeds. Thus, the ld. AR has submitted that the assessee has produced all the supporting evidences right from the purchase bills, payment by the assessee through its bank account, receipt of purchase consideration, ledger account of the company of whose shares were allotted to the assessee, ledger account of M/s Indian Info Tech & Software Ltd., shares certificate, and share transfer certificate, shares ledger register, certificate of shares in the demat account of the assessee. Thereafter, when this company was merged with M/s Indian 7 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT Info Tech & Software Ltd., the shares of Indian Info Tech & Software Ltd. were allotted to the assessee in lieu of the shares of M/s Lambodar Nirmit Ltd. which were also reflected in the demat account of the assessee. Finally the assessee sold the shares from its demate account through stock exchange which cannot be disputed. Thus, the ld. AR has submitted that holding of the assessee in the books of accounts as well as in demat account is clearly established from the record which can be independently verified as the demat account and sale of shares through stock exchange cannot be disputed. Hence, the ld. AR has submitted that the transaction of purchase and sale of shares cannot be held as bogus when the assessee produced the relevant record which was examined by the AO and allowed the claim of the assessee. The Pr. CIT has doubted the transaction merely on the basis of the report of DIT, Patna which was received subsequent to the assessment order passed by the AO and therefore, when the Commissioner has not found any defect in the evidence produce by the assessee in support of the claim then the revision of the order of the Assessing Officer is not justified. Hence, the ld. AR has submitted that the ld. Pr. CIT has invoked the provisions of Section 263 of the Act merely on suspicion whereas the AO had raised specific queries in regard to the relevant points involved 8 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT in the assessment and the assessee had met those queries with supporting evidence which was accepted by the AO while completing the assessment U/s 143(3) of the Act. Therefore, even if the Assessing Officer without recording all the facts has accepted claim of exemption the assessment could not be set aside on the ground that no proper enquiry was made. In support of his contention, the ld. AR has relied upon the following decisions:-
• Krishnamurthy (V.G.) vs. CIT (1985) 152 ITR 683.
• CIT vs. Leisure Wear Exports Ltd. 202 taxmann 130.
• CIT vs. Vikas Polymers 194 Taxman 57.
• CIT vs. International Travel House Ltd. 194 taxman 324.
• CIT vs. Anil Kumar Sharma 194 taxman 504.
• CIT vs. Sun Bean Auto Ltd. 31 DTR 1.
4. On the other hand, the ld. DR has submitted that as per the explanation-2 of section 263 inserted from 01.06.2015 the order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interest of the Revenue if in the opinion of the ld.
Pr. CIT or Commissioner the order is passed without making enquiry or verification which should have been made. Therefore, in the absence of proper enquiry and without considering the report of DIT, Patna 9 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT regarding accommodation entries of bogus capital gain the order of the Assessing Officer allowing the claim U/s 10(38) of the Act clearly falls in the category of erroneous and prejudicial to the interest of the Revenue. Thus, the ld. DR has contended that when the enquiry conducted by the AO while allowing the claim of the assessee has not satisfied the conditions of making enquiry or verification which should have been made in the opinion of the ld. Pr. CIT or Commissioner then, the order of the Assessing Officer is liable to be revised U/s 263 of the Act. The ld. DR has pointed out that the Commissioner found that the AO has not conducted the critical enquiry and nothing is on record to show that any verification of details to establish the genuineness of the claim as made by the assessee has been carried out by the Assessing Officer. The order of the Assessing officer is silent and the claim have been allowed without any discussion. Therefore, even if the assessee has filed the record if the order of the Assessing Officer is silent about the verification and examination of the issue then, it is erroneous so far as prejudicial to the interest of the Revenue. He has relied upon the impugned order of the ld. Pr. CIT.
5. We have considered the rival submissions as well as the relevant material on record. During the scrutiny assessment the AO issued a 10 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT notice u/s 142(1) of the Income Tax Act dated 02.11.2015 asking the assessee to furnish in writing and verified in prescribed manner. The information called for is set out in notice and the AO raised as many as 15 queries. As per query No. 14 the AO asked the assessee to furnish the details as under:-
"14. Furnish complete details and computation of long term capital gains claimed exempted u/s 10(38) of the I.T. Act, 1961. In this account you are required to submit following information:
1.) Copy of your demant account from 01.04.2010 to 31.03.2013.
2.) Copy of contract notes/share certificate for purchase of securities along with mode of payments:
Contract Note No. Date of purchase & folio No. Quantity Purchase amount Mode of payments
3.) Details stock exchange in which the securities are register and details of STT has been charged.
4.) Complete address of the share broker and copy of your account in the books of the brokers through which the transaction has been accompanied.
5.) Annual reports of the company whose securities along with node of payments:
Sales Note No. Date of sale Quantity sold Amount received & mode of amount received"
Thus, on the issue of claim of long term capital gain exempt U/s 10(38) of the Income Tax Act, the AO called extensive details and supporting 11 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT evidence from the assessee. In response the assessee produced all the relevant details the Assessing Officer accepted the claim of the assessee while passing the scrutiny assessment U/s 143(3) of the Act on 20.03.2016 though in the assessment order the AO has not discussed all the details of the issue as well as the verification and examination carried out by the AO. The AO has duly recorded in the assessment order that the assessee attended the assessment proceedings from time to time and furnish required details/information which were placed on record. During the assessment proceeding the books of accounts were produced which were examined on test cheque basis. These facts recorded by the AO have not been disputed by the Pr. CIT while examining the assessment record and invoking provisions of Section 263 of the Act. It appears that the immediate reason for initiating the proceedings U/s 263 of the Act is the CIB report based on the report of the DIT, Patna regarding the accommodation entries. The ld. Pr. CIT was of the opinion that the CIB by itself conducted deep investigation however, there is no dispute that the said report was not received by the AO before the assessment order was passed. Even the subsequent receipt of the said report in itself cannot be considered as a conclusive proof of holding the transactions of purchase and sale of shares as 12 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT bogus when the assessee had produced all the relevant details and evidences in support of the transaction of purchase and sale of shares in question yielded capital gain which is exempt U/s 10(38) of the Act.
In response to the show cause notice the assessee filed its reply dated 28.02.2018 which has been reproduced by the ld. Pr. CIT as under:-
"Kindly refer to your show cause notice u/s 263 dated 12.02.2018. In this regard we would like to submit as under:-
As alleged in your notice we had no information that the learned Assessing Officer had information regarding obtaining accommodation entry in the form of bogus long term capital aain to the tune of Rs. 3,20,00,200/- from sale of scrip namely Indian Infotech and Software Ltd. (INDI INFO).
It appears that the letter appears to be dispatched from DGIT (Inv.) Patna on 15.03.2016 was dispatched from Patna after 15.03.2016 and it was not reached to Assessing Officer before completion of assessment order dated 20.03.2016. So the information was not available with the Learned Assessing Officer on the date of completion of the assessment vide order dated 20.03.2016.
The learned Assessing Officer has accepted the claim after verification of all documents and genuineness of claim of the assessee for exemption u/s 10(38) of the IT Act, 1961. The Learned Assessing Officer has examined the correctness and genuineness of the claim by the following documents submitted to him vide letter dated Nil (last reply submitted to the Learned Assessing Officer) on serial No. 5 from page no. 31 to 91. The documents are listed below:-
Copy of ledger A/c of Lambodar Nirmit Ltd. (Indian Info) 13 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT Copy of ledger A/c of Indian Info Tech and Software Ltd.
Purchase voucher of shares dated 01.02.2011 Money receipt from Chim Purni Sales Pvt. Ltd.
Transfer of share in the name of the assessee Dematerialization request form Conversion certificate of share from Lamobdar Nirmit Ltd. to India Infotech and Software Ltd.
Copy of d.mat account Copy of contract for sale of shares along with STT charges Copy of above documents are enclosed herewith along with copy of reply submitted to the learned Assessing officer.
Therefore, it is clear from the above documents that the Learned Assessing Officer has verified all the documents and records and thereafter allowed the claim of the assessee which is genuine and as per provisions of the law. The Learned Assessing Officer has not committed any error and not his order is prejudicial to the interest of the revenue which is pre condition for taking action u/s 263 of the Income Tax Act, 1961. It appears that the alleged report mentioned in your notice was not on record at the time of completion of the assessment order. Therefore you are requested to drop the proceedings initiated by you and oblige. "
Thus, it is clear that the assessee reiterated its claim on the basis of the evidence which was produced before the AO and again referred in the reply which shows that the assessee purchased the shares of M/s Lambodar Nirmit Ltd. vide purchase bill dated 01.02.2011. The 14 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT assessee purchase 8,000 shares @ Rs. 10 each at par for a consideration of Rs. 8,00,000/-. The said payment of Rs. 8 lakhs has been duly reflected in the bank account of the assessee with ICICI Bank through RTGS in favour of M/s Chin Purni Sales Pvt. Ltd. from whom the assessee purchase the shares. The assessee has also produced the receipts in respect of the purchase consideration which shows confirmation by the seller of the shares. The assessee recorded these transfer in its books of accounts. The assessee has also produced the share certificate which was originally in the name of M/s Chin Purni Sales Pvt. Ltd. from whom the assessee has purchased the shares in question and thereafter, shares were duly transferred in the name of the assessee as per the memorandum of transfer of shares dated 15.08.2011. This endorsement of transfer of shares in the name of the assessee is duly made on the back side of the shares certificate and therefore, the shares in question were transferred in the name of the assessee on 15.08.2011. Along with this endorsement share transfer was advice was also issued by M/s Lambodar Nirmit Ltd. dated 16.11.2011. Thus, it is clear that holding of the shares by the assessee as on 15.08.2011 cannot be disputed. The assessee then got the shares dematerialization in the demat account which again establishes 15 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT the shares duly credited in the demat account of the assessee. Hence, in the month of August, 2011 all the formality of transfer of share in the name of the assessee as well as dematerialization of the shares were completed and on the said date of transfer and dematerialization the holding of shares by the assessee cannot be question. Thereafter the company M/s Lambodar Nirmit Ltd. was got merged with the company M/s Indian Info Tech & Software Ltd. as per the decision of Hon'ble Bombay High Court dated 04.05.2012 whereby the merger scheme of these companies have been approved. The assessee also received a communication from M/s Indian Info Tech & Software Ltd. dated 31.05.2012 regarding approval of scheme of merger and consequently allotment of shares of M/s Indian Info Tech & Software Ltd. in lieu the shares of M/s Lambodar Nirmit Ltd. held by the assessee. The said company M/s Indian Info Tech & Software Ltd. was listed company at the stock exchange and consequently the shares allotted by M/s Indian Info Tech & Software Ltd. were credited to the demat account of the assessee. The entire record and evidences were available before the Assessing Officer and after examination of the same, the AO accepted the claim of the assessee. Thus, once the AO has called for the relevant record and verified the same before allowing 16 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT the claim of the assessee then the AO is not required to give detailed reasons in respect of each and every item of deduction in the assessment order. There is no dispute that the AO called for information and rather the relevant evidence from the assessee which was duly produced by the assessee and found available on the assessment record. Thus, once the enquiry, in fact, has been conducted and the AO has reached a particular conclusion, though reference to such enquiries has not been made in the order of the assessment, the revision of such order by the ld. Pr. CIT without giving a finding of rejecting the evidence produced by the assessee in support of the claim is not justified. The assessee produced the evidence of payment of purchase consideration through banking channel, transfer of share, dematerialization of the shares and thereafter when the company was merged with the another company, the shares of the merging company namely M/s Indian Info Tech & Software Ltd. were issued to the assessee which were duly credited and reflected in the demat account of the assessee, therefore, holding of shares have been proved by the assessee beyond any doubt. The sale of the shares are also not in doubt as the same were sold from the demat account through stock exchange. The Commissioner has given much 17 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT importance and emphasis to the report of the DIT, Patna however, once the assessee has produced evidence which established the genuineness of the transaction being holding of shares by the assessee in the demat account and purchase of the shares against the consideration paid through banking channel then in the absence of bringing any contrary fact or disapproving the evidence produced by the assessee, the mere setting aside issue by the Pr. CIT for denovo consideration is not sustainable. Though Explanation-2 to Section 263 mandates a proper enquiry as the AO should have conducted however, even in the opinion of the Pr. CIT, the AO has not conduced a proper enquiry as it ought to have been once the AO has examined the relevant record in support of the claim of the assessee then, the Commissioner in the proceedings U/s 263 of the Act it also required to have conducted an enquiry to contradict evidence. In the absence of any efforts on the part of the Commissioner to cause a routine inquiry on the issue that has already been conducted by the AO, the order passed by the Pr. CIT merely setting aside the issue to the AO for conducting the denovo assessment is not permissible. The Hon'ble Delhi High Court in case of CIT vs. International Travel House Ltd.(supra) has considered this aspect in paras 17 to 20 as under:- 18 ITA No. 444/JP/2018
Shri Vinay Kumar Sogani Vs. Pr. CIT "17. The second aspect that is required to be adverted is whether the CIT without recording a specific finding with regard to the fact that the order passed by the AO was prejudicial to the interest of the Revenue could have passed an order under s. 263 of the Act, or as Mr. Vohra, learned counsel for the assessee, would put it that the CIT had travelled beyond what was stated in the notice. The hub of the matter is whether the manner in which the CIT has proceeded to exercise the jurisdiction under s. 263 of the Act is sustainable or not. As is discernible from the order, he has asked the AO to conduct an inquiry to verify the net commission transferred to P&L a/c afresh. The CIT has remained totally oblivious of the fact that the AO had already examined this aspect but the CIT had thought to direct a re-inquiry for merely a change of opinion which is impermissible under s. 263 of the Act. In this context, we may refer to the decision in Gabriel India Ltd. (supra) wherein the CIT, after scrutiny of the order of the ITO, found that the order did not disclose application of mind and despite examining the matter at length and hearing the assessee could not come to a definite conclusion that the expenditure was not revenue expenditure but expenditure of capital nature. He referred the matter back to the ITO to examine the same and to decide afresh. The said action of the CIT was not approved by the Tribunal. In that background, the High Court of Bombay expressed the view as follows :
"From a reading of sub-s. (1) of s. 263, it is clear that the power of suo motu revision can be exercised by the CIT only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the ITO is 'erroneous insofar as it is prejudicial to the interests of the Revenue'. It is not an arbitrary or unchartered power. It can be exercised only on fulfilment of the requirements laid down in sub-s. (1). The consideration of the CIT as to whether an order is erroneous insofar as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by 19 ITA No. 444/JP/2018 Shri Vinay Kumar Sogani Vs. Pr. CIT him. If there are no materials on record on the basis of which it can be said that the CIT acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The CIT cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity."
18. In Sirpur Paper Mills Ltd. vs. ITO (1978) 114 ITR 404 (AP), it has been held that the Department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either on the facts disclosed or the weight of the circumstances.
19. If the obtaining factual matrix is tested on the anvil of the aforesaid pronouncement of law, it is quite clear that the CIT has really made an effort to cause a routine inquiry with regard to the matter that had already been concluded. The CIT, as it appears, has thought that he has the authority to begin a fresh litigation because of the view entertained by him. The aforesaid inexhaustible approach is not permissible. He was required to arrive at a definite conclusion but he had not done so.
20. In view of our aforesaid analysis, we do not perceive any reason to interfere with the order of the Tribunal and, accordingly, we give the stamp of approval to the same. Consequently, the appeal, being devoid of merit, stands dismissed without any order as to costs."
20 ITA No. 444/JP/2018
Shri Vinay Kumar Sogani Vs. Pr. CIT Thus, when the entire evidence in support of the claim was available on the assessment record and the Assessing Officer has already examined the same, then the Pr. CIT directing a re-enquiry on the issue is not permissible U/s 263 of the Act.
6. Similar view has been taken in the various decisions as relied by the ld. AR. Further, when the evidence produce by the assessee has proved beyond doubt the transaction of purchase and sale of shares then the same cannot be held as bogus on the basis of DIT, Patna report. Though the issue of purchase price could have been questioned by the AO or the by the commissioner however, in absence of any material to show that the assessee has paid more than the purchase consideration which is claimed and shown in the record the transaction per se cannot be held as bogus even on such grounds. Even otherwise the issue of payment of purchase consideration over and above through banking channel can be matter of separate addition. Hence, in view of the facts and circumstances of the case, we are of the considered opinion that the impugned order passed by the Pr. CIT U/s 263 of the act is not sustainable and consequently the same is set aside.
21 ITA No. 444/JP/2018
Shri Vinay Kumar Sogani Vs. Pr. CIT In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 26/07/2018.
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vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Vinay Kumar Sogani, Jaipur.
2. izR;FkhZ@ The Respondent- Pr. CIT, Jaipur-1, Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.
6. xkMZ QkbZy@ Guard File {ITA No. 444/JP/2018} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 22