VKJ Latest News Update

VKJ Law Offices of Vinay K. Jain Advocates & Solicitors

If AO has duly applied his mind and has discharged his duties as investigator as well as that of adjudicator, then exercise of power by Pr.CIT u/s 263 is unjustified: ITAT

2019-TIOL-1563-ITAT-KOL

IN THE INCOME TAX APPELLATE TRIBUNAL
BENCH ‘B’ KOLKATA

ITA No.1153/Kol/2019
Assessment Year: 2014-15

TANISH DEALERS PVT LTD

Vs

PRINCIPAL COMMISSIONER OF INCOME TAX
CIRCLE-4, KOLKATA

A T Varkey, JM & Dr A L Saini, AM

Date of Hearing: June 20, 2019
Date of Decision: July 1, 2019

Appellant Rep by: Shri D.S. Damle, AR
Respondent Rep by: Shri Radhey Shayam, CIT, DR

Income Tax – Section 263.

Keywords – Short term capital loss – Sale of shares.

THE assessee company, engaged in the business of trading, filed return for relevant AY. The case of the assessee was selected for scrutiny and one of the reason for selection was suspicious transactions relating to short term capital loss on sale of shares. After examining the audited accounts, tax audit report & computation of income furnished by the assessee; the AO framed the assessment u/s 143(3) in which no adverse inference was drawn in respect of the STCL. Thereafter the Pr.CIT called for the assessment records and on examination thereof he noted that the AO had allowed the set off of the short term capital loss of Rs. 15,49,658/- against assessee’s other business income without enquiring into the allowability of such claim in terms of the CBDT Instruction No.287/30/2014-IT(Inv II)Vol. III dated 16.03.2016. He accordingly issued a show cause notice u/s 263 of the Act and after hearing the assessee the Pr. CIT held that AO’s order was erroneous and prejudicial to the revenue for lack of enquiry in respect of loss incurred and set aside the order of AO directing him to pass order afresh after taking note of his observations in the order u/s 263. Aggrieved by the revision order, assessee filed appeal before Tribunal.

On appeal, Tribunal held that,

Whether when AO has applied his mind on the issue of STCL and his view is sustainable in law and the AO has thus discharged his duties as an investigator as well as that of an adjudicator then exercise of power by Pr.CIT u/s 263 is justified – NO : ITAT

++ Pr. CIT stated that the AO ought to have enquired about the nature of scrip, source of investment, time of investment, details of other business, its profit, performance of share, what motivated the company to invest, whether the company does business like this in other shares as well etc.It is for the non-enquiry into these peripherial issues that the Pr.CIT held the order to erroneous and prejudicial to the interests of the Revenue. From the material placed, however it was noted that these aspects did not have any material bearing in deciding whether assessee’s transactions in shares and consequent loss incurred were genuine or not. In fact the SCN issued by the PCIT nowhere makes any reference to these factors for considering the AO’s order to be erroneous. On the contrary it was found that before the order of assessment was passed the AO had required the assessee to furnish transactional documents proving the purchase and sale of all shares held as investment during the year. On examination of the material placed before him by the assessee, the AO was satisfied that the short term capital loss was incurred by the assessee on sale of shares listed on the Bombay Stock Exchange. The assessee had filed before the AO the relevant details and also produced the time stamped contract notes issued by its broker. All the transactions were made through registered share broker at rates prevailing on the stock exchange on the relevant dates. The payment for acquisition of shares and the subsequent sale proceeds were also transacted through the appellant’s regular bank account. It is noted that the listed shares were sold within a period of one year from the date of acquisition and therefore the gain/loss was short term in nature. In the facts and circumstances, therefore it was found that the AO had discharged his duties as an investigator as well as that of an adjudicator and applied his mind on the issue before him and taking into consideration the explanation rendered by the assessee had taken a reasonable and plausible decision to allow the claim of short term capital loss as made by the assessee in the return of income. In this factual background therefore it was held that while passing the assessment order the AO did not follow a view which can be said to be ‘unsustainable in law’. In the circumstances therefore, the jurisdictional facts for usurping the jurisdiction, being absent, it was hold that the action of Pr. CIT was without jurisdiction and all subsequent actions are ‘null’ in the eyes of law. In the result, the appeal of assessee is allowed.

Assessee’s appeal allowed

ORDER

Per: A T Varkey:

1. This appeal is against the order of the Pr. C.I.T.-4, Kolkata dated 12.03.2019 passed u/s 263 of the Act for the A.Y.2014-15.

2. In Ground Nos.1 to 3, the assessee has challenged the usurpation of jurisdiction by the Pr. C.I.T. u/s 263 of the Act, to interfere in the order dated 07.10.2016 passed by the Assessing Officer u/s 143(3) of the Act. Brief facts of the case as noted by the Pr. CIT in the impugned order is that the assessee company filed return for the A.Y.2014-15 declaring total income of Rs.7,35,124/- and the assessment u/s 143(3) was completed on 07.10.2016 at a total income of Rs.7,41,641/-.Thereafter the ld. Pr.CIT called for the assessment records and on examination thereof he noted that the case of the appellant was selected for scrutiny on the issue of suspicious transaction relating to the short term capital loss incurred in the shares of UNNO Industries Ltd. According to ld. Pr. CIT, the AO had allowed the set off of the short term capital loss of Rs.15,49,658/- against assessee’s other business income without enquiring into the allowability of such claim in terms of the CBDT Instruction No.287/30/2014-IT(Inv II)Vol. III dated 16.03.2016. He accordingly issued a show cause notice on 26.02.2019 u/s 263 of the Act and after hearing the assessee the ld. Pr. CIT held that AO’s order was erroneous and prejudicial to the revenue for lack of enquiry in respect of loss incurred and set aside the order of AO directing him to pass order afresh after taking note of his observations in the order u/s 263. Aggrieved by the revision order of the ld. Pr. CIT, the appellant has preferred this appeal before us.

3. We have heard both the parties and perused the paper book and case laws cited by both the parties. We note that the appellant company is engaged in the business of trading. The case of the appellant was selected for scrutiny under CASS and one of the reason for selection was suspicious transactions relating to short term capital loss on sale of shares. After examining the audited accounts, tax audit report & computation of income furnished by the appellant; the AO vide notice u/s 142(1)dated 13.07.2016 required the assessee to submit the specific details of shares in which it had incurred short term capital loss. The Ld. AR drew our attention to the appellant’s response dated 03.08.2016 which was at Pages 16 to 30 of the paper book and submitted that the complete details were furnished by the appellant vide submission dated 03.08.2016. He further invited our attention to the subsequent requisition dated 15.09.2016 issued by the AO u/s 142(1) inter alia calling for further details concerning short term capital loss, which we note was also complied by the appellant. The Ld. AR submitted that it was only after calling for the requisite details in respect of transactions in shares resulting in loss and on being satisfied with the documents & explanations furnished, the AO framed the assessment u/s 143(3) on 07.10.2016 in which no adverse inference was drawn in respect of the short term capital loss of Rs.15,49,658/- disclosed in the return of income for AY 2012-13. He therefore submitted that it was not a case of lack of enquiry as alleged by the Ld. Pr. CIT in his order u/s 263 and therefore assumption of jurisdiction u/s 263 was bad in law and consequently the impugned order deserves to be quashed. The Ld. CIT, DR on the other hand supported the order of the Ld. Pr. CIT-4, Kolkata.

4. With the aforesaid factual background, let us examine whether the finding of the Pr.CIT that the AO’s order is erroneous and prejudicial to Revenue on account of lack of enquiry on the part of AO was factually and legally justified and sustainable. We note that the assessee company has challenged in the first place, the very usurpation of jurisdiction by ld. Principal CIT to invoke his revisional powers enjoyed u/s 263 of the Act. To adjudicate this issue we have to first see whether the requisite jurisdiction necessary to assume revisional jurisdiction existed before the Pr. CIT exercised his powers. For that, we have to examine whether in the first place the order of the Assessing Officer found fault by the Principal CIT, was erroneous as well as prejudicial to the interest of the Revenue. For that, let us take the guidance of judicial precedence laid down by the Hon’ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC2002-TIOL-491-SC-IT wherein their Lordship have held that twin conditions should be satisfied before jurisdiction u/s 263 of the Act is exercised by the CIT. The twin conditions which need to be satisfied are that (i) the order of the Assessing Officer must be erroneous and(ii) as a consequence of passing an erroneous order, prejudice is caused to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous i.e. (i) if the Assessing Officer’s order was passed on assumption of incorrect facts; or assumption of incorrect law; (ii) Assessing Officer’s order is in violation of the principles of natural justice; (iii) if the AO’s order is passed by the without application of mind; or (iv) if the AO has not investigated the issue before him. In the circumstances enumerated above only the order passed by the Assessing Officer can be termed as erroneous for the purpose of S.263 of the Act. Coming next to the second limb, the AO’s erroneous order can be revised by the CIT only when it is shown that the said order is prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interest of the revenue” has to be read in conjunction with an “erroneous” order passed by the Assessing Officer. For invoking powers conferred by S.263; the CIT should not only show that the AO’s order is erroneous as a result of any of the situations enumerated above but CIT must also further show that as a result of an erroneous order some real and tangible loss is caused to the interest of the revenue. Their Lordship in the said judgment therefore held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. It further observed that when the Assessing Officer adopts one of the course permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law.

5. In the given facts of the present case the only fault found by the ld. Pr. CIT to interfere with the order of AO was the alleged lack of enquiry in respect of short term capital loss and for which he held the assessment order to be erroneous and prejudicial to interest of the Revenue. In the opinion of the PR. CIT; before completing the assessment; the AO did not conduct the enquiries which he was expected to conduct in view of the instruction dated 16.03.2016 issued by CBDT. We are aware of the fact that the Assessing Officer’s role while framing an assessment is not only as an adjudicator but he is also an investigator. The AO has a dual role to dispense with i.e. he is an investigator as well as an adjudicator and therefore, if he fails in any one of the two roles as afore-stated, his order can be termed as erroneous. Keeping this proposition in mind, we note that in the given facts of the present case the AO had made specific enquiry regarding the short term capital loss in shares suffered by the assessee. Vide notice u/s 142(1) dated 13.07.2016 which is available at Page 14 & 15 of the paper book, the AO had informed that he had received inputs from Investigation Wing regarding assessee’s suspicious transactions relating to short term capital loss claimed in the return and therefore to examine its veracity he required the assesse to furnish the following:

“10. Details of Suspicious transaction relating to Sort Term Capital Loss on shares (inputs from investigation Wing) i.e. Name of Scrip, Date of purchase, Quantity, Rate in Mode of payment. Date of Sale, Quantity sold, Rate, Date of Dividend declaration, Amount of dividend, STT paid, S.T. Capital Loss.”

6. We note that in compliance with the AO’s notice u/s.142(1)the appellant furnished the required details vide its submission dated 03.08.2016. Along with the letter dated 03/08/2016 the appellant furnished a statement giving detailed break-up of the short term capital gain as well as short term capital loss incurred on sale of investments in shares and other securities. It is further noted that the appellant furnished copies of its bank statements, contract notes, etc. in support of its transactions conducted in shares of UNNO Industries Ltd which resulted in short term capital loss of Rs.15,49,658/-. On examination of the details furnished, we find that the direct evidences furnished by the appellant ex-facie substantiated its claim of short term capital loss. Hence we do not find any substance in the SCN issued u/s 263 wherein it was claimed that AO did not conduct any enquiry on this issue. At the most it can be said that the enquiry conducted by the AO before passing of the order was not as per the standards expected by the Ld. Pr. CIT. The question that arises on the foregoing facts therefore is whether it was indeed a case of lack of enquiry or alleged inadequate enquiry. The settled position of law is that lack of enquiry on the part of the AO on an issue makes his order erroneous on that issue whereas inadequate enquiry does not make the order erroneous unless, the ld. Pr.CIT after himself conducting the inquiry on the issue, demonstrates with tangible material that the finding of AO in the order passed on the issue, was factually or legally wrong or view followed by him in the order was unsustainable in law. In such a situation only the ld. Pr.CIT satisfies the jurisdictional fact which is required to interdict and exercise revisional jurisdiction u/s 263 of the Act.

7. In order to understand the difference between “lack of inquiry” and “inadequate inquiry” and when it can be termed as erroneous, let us look at the following case laws wherein their Lordships explained the difference between the two as follows:-

INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD 343 ITR 329 (Delhi) = 2012-TIOL-195-HC-DEL-IT

Revenue does not have any right to appeal to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Firstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression “prejudicial to the interest of the Revenue” is of wide import and is not confined to merely loss of tax. The term “erroneous” means a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law.

The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word “erroneous” includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further ITA No.904/Kol/2017 M/s Rassco Steels Ltd. A.Y.2012-13 enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question.

This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged “inadequate investigation”, it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous.

COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR 593 = 2014-TIOL-790-HC-KOL-IT

As regard the submission on behalf of the Revenue that power under Section 263 of the Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exercise power under Section 263 of the Act even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144 2003-TIOL-1199-HC-AHM-ITCIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC) = 2007-TIOL-02-SC-IT, not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83 =2002-TIOL-491-SC-IT, relied on.

(Para 72) As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142 (1) of the Act could not have been formulated. The Assessing Officer was required to examine the return filed by the assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka)2012-TIOL-1133-HC-KAR-IT; S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished.

8. We note that the sheet anchor on which the ld. Pr. CIT has found fault with the AO’s order in the present case is the lack of enquiry on the part of the AO in allowing appellant’s claim for short term capital loss. In this context we find that there is a clear distinction between “lack of enquiry” and “inadequate enquiry”. If there is an enquiry, even if inadequate, that would not by itself give occasion to the ld. Pr.CIT to interdict and interfere by exercising his revisional jurisdiction merely because he is of the opinion that some more enquiries should have been conducted in the matter. In a case where the CIT finds that the enquiry conducted by the AO is not in accordance with his subjective standards, then the Ld. Pr. CIT should himself conduct the investigation and thereafter record a clear finding in his order u/s. 263 that the view followed or acted upon by the AO in his order was unsustainable in law. In the given facts of the present case, as noted earlier, the AO had made due enquiries into the claim of short term capital loss incurred by the appellant in the shares of UNO Industries. The AO had called for complete details of the short term capital loss incurred in shares which was reported to be suspicious by the Investigation Wing. After examining the specific details furnished by the appellant vide its letter dated 03/08/2016 that the AO issued another questionnaire dated 15.09.2016 wherein he once again called for the following details :

2. Details of Investment in Equity Shares of Rs.8606987/- during the year under consideration.

(i) Name & address of the company in which investment is made

(ii) Copy of allotment letter

(iii) Copy of “Contract Note” in respect of quoted shares

(iv) Date of allotment of shares

(v) No. of shares

(vi) Value of shares

(vii) Source of payment made for obtaining shares

(viii) In this regard, you are also requested to furnish the evidence of Mode of such payment along with the details of cheque numbers and The copy of bank statement (F.Y. 2013-14) highlighting the relevant Entries therein showing the transaction.

3. Please furnish the following details in respect of Short Term Capital Loss

(i) Name of Scrip,

(ii) Date of purchase

(iii) Quantity

(iv) Rate

(v) Mode of Payment

(vi) Date of sale

(vii) Quantity Sold

(viii) Rate

(ix) Date of Dividend declaration

(x) Amount of dividend

(xi) STT paid

(xii) S.T. Capital Loss.

9. We note that the appellant complied with the above questionnaire as well. On these facts therefore it cannot be said that AO did not enquire into the claim of short term capital loss or that the assessment order suffered from ‘lack of enquiry’. It is noted that the SCN as well as the impugned order proceeded on the premise that the AO did not enquire into the short term capital loss in the manner set out by the CBDT in its Instruction No.287/30/2014-IT(Inv II)Vol. III dated 16.03.2016. The relevant extracts of the said Circular is as follows:

“Kind attention is invited to the above referred EFS Instruction issued by the System Directorate regarding handling cases of Penny Stocks (suspect Long Term Capital Gains/Short Term Capital Loss etc).

2. It is informed that the said instruction is in the context of investigation conducted by Kolkata Investigation Directorate in respect of large number of penny stock companies, whose share prices were artificially raised on the Stock Exchanges in order to book bogus claims of Long Term Capital Gains or Short Term Capital Loss by various beneficiaries. Extensive investigation, including search and seizure/survey action on entry providers, riggers, beneficiaries etc. was conducted by the Investigation Directorate in such cases. Based upon outcome of such investigation and analysis of the data, the Systems Directorate has now uploaded details of such information in respect of individual assessees who have made transactions in such penny stocks.

3. Vide EFS Instruction under reference a new button ‘Penny Stock’ has been added on Individual Transaction Screen (ITS) to display information related to penny stock, now enabled on the screen of the Assessing Officers (AOs). Available information regarding the manipulative transactions has been captured in the functionality, including the investigation report of the Kolkaia Investigation Directorate. The functionality also contains a guidance note for the Assessing Officers. Such details are visible to the AOs of those assessees whose particulars have emanated out of the investigation report of Kolkata Investigation Directorate and whose cases have been considered actionable, at this stage. The details are also visible to supervisory officers of such AOs.

4. In case of any difficulty in viewing the information on ITS, Shri Vipul Agarwal, JDIT (Sys) 2(1) could be contacted on 0120-2770052 or email at vipul.agarwal@nic.in

5. The undersigned is directed to request that necessary directions may kindly be issued to the officers working under your jurisdiction to access this functionality and ensure that information available in the ‘Penny Stock’ functionality which may be useful for the purpose of cases presently under scrutiny, is examined and considered while finalizing assessments and considering reopening of cases under section 148 of the IT Act, 1961.(Emphasis supplied)

6. This issues with the approval of Member (Inv), CBDT.”

10. On perusal of the above Instruction, it is noted that the CBDT had only informed the field officers that a button ‘Penny Stock’ has been added on their Individual Transaction Screen to display information related to penny stock, including the investigation report of the Kolkata Investigation Directorate. Accordingly the CBDT had issued directions to CITs to ensure that the officers working under their respective jurisdictions should access this functionality. We do not find that the CBDT instruction referred to by the PCIT in his SCN, any way out lined the mode or the manner of the enquiry to be conducted by the Assessing Officers concerning such suspicious transactions inter alia including purchase& sale of penny stock shares. Upon being enquired as to whether the CBDT has laid down any specific guidelines for the field officers, pursuant to the above Instruction for investigation into the suspicious transactions in shares, the Ld. CIT, DR was unable to bring to our notice the so-called specific line of enquiry which the CBDT had mandated the AOs to abide by. We therefore find that very premise viz., violation of the directions contained in CBDT Instruction No.287/30/2014-IT(Inv II)Vol. III, based on which the ld. Pr.CIT initiated the proceedings u/s 263 for alleged lack of enquiry by the AO into the appellant’s claim of short term capital loss, is found to be factually untenable.

11. We further note that at Para 4.1 the impugned order the Ld. Pr. CIT stated that the AO ought to have enquired about the nature of scrip, source of investment, time of investment, details of other business, its profit, performance of share, what motivated the company to invest, whether the company does business like this in other shares as well etc.It is for the non-enquiry into these peripherial issues that the ld. Pr.CIT held the order to erroneous and prejudicial to the interests of the Revenue. From the material placed before us and in view of the discussions in the earlier paras, we however note that these aspects did not have any material bearing in deciding whether assessee’s transactions in shares and consequent loss incurred were genuine or not . In fact the SCN issued by the PCIT nowhere makes any reference to these factors for considering the AO’s order to be erroneous. On the contrary we find that before the order of assessment was passed the AO had required the assessee to furnish transactional documents proving the purchase and sale of all shares held as investment during the year. On examination of the material placed before him by the appellant, the AO was satisfied that the short term capital loss was incurred by the appellant on sale of shares listed on the Bombay Stock Exchange. The appellant had filed before the Ld. AO the relevant details and also produced the time stamped contract notes issued by its broker. All the transactions were made through registered share broker at rates prevailing on the stock exchange on the relevant dates. The payment for acquisition of shares and the subsequent sale proceeds were also transacted through the appellant’s regular bank account. It is noted that the listed shares were sold within a period of one year from the date of acquisition and therefore the gain/loss was short term in nature. In the facts and circumstances as discussed above therefore we find that the AO had discharged his duties as an investigator as well as that of an adjudicator and applied his mind on the issue before him and taking into consideration the explanation rendered by the appellant, had taken a reasonable and plausible decision to allow the claim of short term capital loss as made by the appellant in the return of income. In this factual background therefore we are of the considered opinion that while passing the assessment order the AO did not follow a view which can be said to be ‘unsustainable in law’. In the circumstances therefore, the jurisdictional facts for usurping the jurisdiction, being absent, we hold that the action of Ld. Pr. CIT was without jurisdiction and all subsequent actions are ‘null’ in the eyes of law. We therefore quash the order impugned before us.

12. In the result, the appeal of assessee is allowed.

(Order pronounced in the open court on 1.7.2019)

Leave a Reply

Close Menu
%d bloggers like this: