BHAVNA B. KOTHARI, MUMBAI V. ITO 22 (1)(3), MUMBAI

ITA 3740/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6898 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 29-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL RAMANLD
• Assessee Lawyers: SHASHI TULSIYAN LD
• Keywords: Deduction for capital gain; Salary income; Opportunity of being heard; Principle of natural justice; Difference of opinion; Assessment record; Change of opinion; TDS; Set aside; Capital Gains
• Section: 143(3); 142(1); 263

Judgement Text

ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3740/MUM/2019 ( / ASSESSMENT YEAR : 2014-15 ) SMT. BHAVNA B. KOTHARI FLAT NO.13, 2 ND FLOOR PANKAJ BUILDING, VAKOLA BRIDGE SANTACRUZ (EAST), MUMBAI- 400 055 / VS. INCOME TAX OFFICER - 22(1)(3) ROOM NO.409, 4 TH FLOOR PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI- 400 012. %& ./ ./PAN/GIR NO. AQWPK-7454-L ( &( /APPELLANT ) : ( )*&( / RESPONDENT ) ASSESSEE BY : SHRI SHASHI TULSIYAN-LD.AR REVENUE BY : SHRI RAHUL RAMAN-LD. CIT-DR / DATE OF HEARING : 19/08/2020 / DATE OF PRONOUNCEMENT : 11/09/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS APPEAL, THE ASSESSEE CONTEST CORR ECTNESS OF REVISIONAL JURISDICTION U/S 263 AS EXERCISED BY LD. PR. COMMISSIONER OF INCOME TAX-22, MUMBAI, FOR ASSESSMENT YEAR 2014-15, VIDE ORDER DATED 26/03/2019. THE GROUNDS RAISED BY THE ASSESSE E READ AS UNDER: - A. REVISIONARY PROCEEDINGS AND ORDER UNDER SECTIO N 263 ARE VOID AB INITIO, INVALID, BEYOND THE AUTHORITY OF LA W AND DEVOID OF ANY LEGAL FORCE: ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE HONORABLE PRINCIPAL COMMISSIONER OF INCOME TAX-22 ('THE LEARN ED CIT') FAILED TO APPRECIATE THAT THE PROCEEDINGS UNDER SECTION 263 OF THE INCOM E TAX ACT, 1961 ('THE ACT') WERE BEYOND THE JURISDICTION, VOID AND OF NO LEGAL EFFEC T IN THE APPELLANTS CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT ERRED IN SETTING ASIDE THE ORDER PASSED UNDER SECTI ON 143(3) OF THE ACT BY THE LEARNED INCOME TAX OFFICER-22(L)(3), MUMBAI ('THE A O') UNDER SECTION 263 OF THE ACT BY HOLDING IT TO BE ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE. 3. THE LEARNED CIT FAILED TO APPRECIATE THAT THE APPELLANT HAS DISCLOSED FULLY AND TRULY ALL THE MATERIAL FACTS NECESSARY FOR THE ASSE SSMENT AND THAT THE ORIGINAL ASSESSMENT WAS MADE BY THE THEN AO UNDER SECTION 14 3(3) OF THE ACT AFTER DUE AND PROPER CONSIDERATION OF THE SAME; WHICH IS EVIDENT FROM THE ASSESSMENT ORDER U/S.143(3) OF THE ACT. 4. THE LEARNED CIT FAILED TO APPRECIATE THAT THER E WAS NO FAILURE ON PART OF THE APPELLANT TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT AND ALL THE MATERIAL EVIDENCES WERE ALREADY ON THE RECORD OF DEPARTMENT. HENCE THE ISSUE OF NOTICE UNDER SECTION 263 OF THE ACT IS BAD IN LAW BEING VOID AB-INITIO, INVALID, BEYOND THE AUTHORITY OF LAW AND DEVOID OF LEGAL FOR CE. 5. IN THE VIEW OF ABOVE, THE ORDER OF THE LEARNED CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. B. REASONS FOR REVISION ARE FOR REVIEWING AND RE- EXAMINING FACTS ALREADY EXAMINED AND ON RECORD OF DEPARTMENT: 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT ERRED IN INVOKING JURISDICTION UNDER SECTION 263 AN D SETTING ASIDE THE ASSESSMENT ORDER U/S.143(3) OF THE ACT FOR REVIEWING AND RE-EX AMINING THE FACTS, DETAILS, DOCUMENTS, EVIDENCES ALREADY EXAMINED BY THE AO, WH O HAD ALREADY MADE JUDGMENT BASED ON THE SAME AND HAD PASSED THE ORDER OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT. IT IS WELL SETTLED THAT REVISION CANNOT BE UNDERTAKEN FOR RE- EXAMINING AND DIRECTING FRESH INQUIRY DUE TO CHANGE OF OPINION. 7. THE LEARNED CIT FAILED TO APPRECIATE THE FACT THAT THE DETAILS, DOCUMENTS, EVIDENCES FOR WHICH HE HAS ISSUED NOTICE UNDER SECT ION 263 OF THE ACT WERE ALREADY ON THE RECORDS OF THE DEPARTMENT. FURTHER, THE ORDE R OF LEARNED CIT U/S.263 SPECIFIES THAT 'IT WAS EXPLAINED TO THE AR OF THAT THE AO HAD NEVE R EXAMINED THE DETAILS FURNISHED REGARDING CAPITAL GAINS CLAIMED O N SRK SHARES AND THE ISSUE WAS SIDE STEPPED BECAUSE OF THE INFORMATION OF THE ASSE SSEE FILING UNDER IDS'; WHICH CLEARLY CONVEYS THAT THE INITIATION OF REVISION PRO CEEDINGS BY THE LEARNED CIT IS MERELY FOR THE REVIEW AND RE- EXAMINATION OF THE MATERIAL ALREADY ON THE RECORD, WHICH IS NOT PERMISSIBLE AS PER THE PROVISIONS OF S ECTION 263 OF THE ACT. 8. IN THE VIEW OF ABOVE, THE ORDER OF THE LEARNED CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. C. REVISION OF ASSESSMENT NOT JUSTIFIED ON THE BA SIS THAT THERE IS NO DISCUSSION IN ORIGINAL ASSESSMENT ORDER REGAR DING A PARTICULAR CLAIM: 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT ERRED IN INVOKING SECTION 263 IN RESPECT OF CLAIM O F LONG TERM CAPITAL GAIN EXEMPTION ON SHARES OF SRK INDUSTRIES LTD. ON THE G ROUND THAT THE SAME WAS NOT DISCUSSED IN THE ASSESSMENT ORDER U/S.143(3) OF THE ACT. ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 3 10. IN DOING SO, THE LEARNED CIT FAILED TO APPRECIA TE THAT THE COMPLETE FACTS, DETAILS, DOCUMENTS, EVIDENCES RELATED TO THE CLAIM OF LONG T ERM CAPITAL GAIN EXEMPTION ON SHARES OF SRK INDUSTRIES LTD. WERE ON RECORD OF THE AO, WHO AFTER EXAMINING AND SATISFYING HIMSELF HAD PASSED THE ORDER OF ASSESSME NT UNDER SECTION 143(3) OF THE ACT; AND HENCE THE PROCEEDINGS UNDER SECTION 263 AR E NOT LEGALLY VALID. 11. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT (A) BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. D. REVISIONARY ORDER PASSED WITHOUT DISPOSING THE OBJECTIONS RAISED BY APPELLANT: 12. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN PASSING THE ORDER U/S.263 OF THE ACT, WITH OUT DEALING WITH AND DISPOSING THE OBJECTIONS RAISED BY THE APPELLANT TO THE REVISIONA RY PROCEEDINGS VIDE LETTER 19TH MARCH 2019. 13. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNED CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. E. REVISIONARY ORDER PASSED WITHOUT CONSIDERING THE FACTS AND CONTENTIONS RAISED BY APPELLANT: 14. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN PASSING THE ORDER U/S.263 OF THE ACT, WITH OUT DEALING WITH OR CONSIDERING ALL THE FACTS, DETAILS AND DOCUMENTS FURNISHED AND CONT ENTIONS RAISED BY THE APPELLANT IN THE PROCEEDINGS. 15. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT HAS FAILED TO BRING ON RECORD AS TO HOW AFTER EXAMI NING THE COMPLETE DETAILS SUBMITTED BY THE APPELLANT PERTAINING TO THE CLAIM OF LONG TERM CAPITAL GAIN EXEMPTION ON SALE OF SHARES OF SRK INDUSTRIES LTD; HE HAS REACHED A CONCLUSION THAT ORDER U/S.143(3) ACCEPTING THE APPELLANTS RETU RNED INCOME IS ERRONEOUS AND THE SAME REQUIRED REVISION. 16. IN DOING SO, THE LEARNED CIT HAS ERRED IN IGNOR ING THE APPELLANTS SUBMISSIONS DATED 19TH MARCH 2019 AND 25TH MARCH 2019 BEFORE PA SSING THE ORDER U/S.263 OF THE ACT DATED 26'' MARCH 2019. 17. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNED CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. F. NO APPLICATION OF MIND WHETHER APPELLANT'S CA SE IS FIT CASE FOR REVISION U/S.263 OF THE ACT: 18. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN PASSING THE ORDER U/S.263 OF THE ACT HOLDI NG THAT ORDER U/S.143(3) IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E, WITHOUT PROPER APPLICATION OF MIND TO AS REGARDS THE FACTS, DETAILS AND DOCUMENTS FURNISHED AND CONTENTIONS RAISED BY THE APPELLANT IN THE PROCEEDINGS. 19. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN INITIATING PROCEEDINGS U/S.263 OF THE ACT ON THE GROUND THAT APPELLANT'S CASE WAS SELECTED FOR SCRUTINY TO VERIFY TDS ON IMMOVABL E PROPERTY U/S.194IA AND NO DETAIL OR EXPLANATION IN THIS REGARD WAS AVAILABLE ON THE FILE. HOWEVER, THERE IS NO PURCHASE OF PROPERTY BY THE APPELLANT IN THE CAPTIO NED YEAR; AND HENCE THE ENTIRE BASIS OF INITIATING PROCEEDINGS U/S.263 OF THE ACT IN APPELLANT'S CASE IS INCORRECT, WITHOUT APPLICATION OF MIND AND EXAMINATION OF DETA ILS. 20. IN THE COMMUNICATIONS OF PROCEEDINGS U/S.263, T HE FOLLOWING INCONSISTENCIES/ DISCREPANCIES ARE EVIDENT: ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 4 I. THE QUANTITY OF SHARES OF SRK INDUSTRIES LTD. IS STATED AT 44,000/- WHEREAS THE CORRECT FIGURE IS 44,400; II. APPELLANTS REPLIES DATED 19'' MARCH 2019 A ND 25'' MARCH 2019 NOT CONSIDERED BEFORE PASSING THE ORDER U/S.263 OF THE ACT DATED 2 6 ! ' MARCH 2019; III. DESPITE SUBMITTING COMPLETE, DETAILS ON M ERITS REGARDING THE APPELLANT'S CLAIM OF LONG TERM CAPITAL GAIN ON SHARES OF SRK INDUSTRI ES LTD.; NOTHING IS BORNE OUT IN THE ORDER U/S.263 AS TO HOW AFTER EXAMINING ALL THE DETAILS, SUBMITTED, THE LEARNED CIT CONCLUDES THAT THERE IS ANY ERROR IN THE ORDER U/S.!43(3) OF THE ACT. 21. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNED CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. G. FAIR AND PROPER OPPORTUNITY OF BEING HEARD NOT GRANTED: 22. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN INVOKING SECTION 263 OF THE ACT TO SET ASI DE THE ASSESSMENT ORDER U/S. 143(3) PASSED BY THE AO WITHOUT GIVING THE APPELLAN T FAIR AND PROPER OPPORTUNITY OF BEING HEARD AND WITHOUT FOLLOWING THE PRINCIPLES AN D RULES OF NATURAL JUSTICE. 23. THE LEARNED CIT FAILED TO PROVIDE THE APPELLANT S COPY OF THE FOLLOWING DOCUMENTS, ON THE BASIS OF WHICH HE CONSIDERS THE O RDER U/S.143(3) OF THE ACT TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E, DESPITE SEVERAL REQUESTS: I. THE COPY OF THE PROCEEDING SHEET TO ENABLE US TO RESPOND APPROPRIATELY; II. THE COPY OF THE AFFIDAVIT REFERRED IN THE NOTIC E AND ORDER U/S.263; III. THE DOCUMENTS TO ESTABLISH THAT THE CAPITAL GA IN AS CLAIMED BY THE APPELLANT IS NOT PROPER. 24. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNE D CIT BE QUASHED, BY HOLDING IT TO BE BAD IN LAW. H. GENERAL: 25. ALL THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT OF AND WITHOUT PREJUDICE TO EACH OTHER. 26. THE LEARNED CIT'S ORDER BEING CONTRARY TO THE L AW, EVIDENCE AND FACTS OF THE CASE, SHOULD BE SET ASIDE, QUASHED OR MODIFIED ON T HE GROUNDS DEDUCED ABOVE, 27. THE APPELLANT CRAVES LEAVE TO ADD, MODIFY OR DE LETE ANY GROUND AT, DURING OR BEFORE THE HEARINGS. 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE ( AR) ADVANCED ARGUMENTS SUPPORTING THE GROUNDS OF APPEAL AND ASSA ILED THE REVISIONAL JURISDICTION. OUR ATTENTION HAS BEEN DRAWN TO THE Q UANTUM ASSESSMENT ORDER FRAMED BY LD. AO AND VARIOUS QUERIES RAISED D URING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS. THE RELEVANT DOCUME NTS, IN THIS REGARD, HAS BEEN PLACED IN THE PAPER-BOOK WHICH WE HAVE CONSIDERED. THE LD. CIT-DR SUPPORTED THE EXERCISE OF REVISIONAL JURISDICTION U/S 263. THE JUDICIAL PRONOUNCEMENT AS CITED DURING THE COUR SE OF HEARING AS WELL ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 5 AS CLARIFICATION HAS BEEN DELIBERATED UPON. OUR ADJ UDICATION TO THE SUBJECT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCE EDING PARAGRAPHS. 3.1 UPON PERUSAL OF MATERIAL ON RECORD, IT IS FOUND THAT THE QUANTUM ASSESSMENT FOR YEAR UNDER CONSIDERATION WAS FRAMED BY LD. AO U/S 143(3) ON 06/12/2016 ACCEPTING RETURNED INCOME OF R S.10.09 LACS E- FILED BY THE ASSESSEE ON 15/12/2014. IT IS APPARENT FROM ASSESSMENT ORDER THAT NOTICE U/S 142(1) WAS ISSUED ALONG WITH QUESTIONNAIRE DATED 10/05/2016. VARIOUS DETAILS WERE CALLED WHICH WERE DULY SUBMITTED AND PLACED ON RECORD. THESE DETAILS INCLUDE NOTES AND E XPLANATIONS ON THE ISSUES THAT CAME UP FOR DISCUSSION DURING THE COURS E OF HEARING. FINALLY, NO ADDITIONS / DISALLOWANCES WERE PROPOSED BY LD. A O IN THE QUANTUM ASSESSMENT ORDER. THE ASSESSEE BEING RESIDENT INDIV IDUAL DERIVED INCOME FROM SALARY AND OTHER SOURCES. IN ITS COMPUT ATION OF INCOME, IT REFLECTED LONG TERM CAPITAL GAINS (LTCG) OF RS.79.0 5 LACS ON SALE OF CERTAIN SHARES, WHICH WERE CLAIMED EXEMPT U/S 10(38 ). 3.2 DURING THE COURSE OF REGULAR ASSESSMENT PROCEED INGS, THE ASSESSEE, VIDE SUBMISSIONS DATED 28/11/2016, FILED COMPLETE DETAILS OF COMPUTATION OF LTCG. THE CHORONOLOGY OF THE EVENTS WHICH GAVE RISE TO LTCG WERE ENUMERATED IN THE SAID SUBMISSIONS. THE C OPIES OF PURCHASE BILLS, BANK PASSBOOK EVIDENCING PURCHASE OF SHARES THROUGH BANKING CHANNELS, COPIES OF ALLOTMENT LETTERS PURSUANT TO S CHEME OF AMALGAMATION, COPY OF DEMAT STATEMENTS, SALE CONTRA CT NOTES, BROKERS BILL, TRANSACTION WISE COMPUTATION OF LTCG WAS PLAC ED ON RECORD. THE ASSESSEE EARNED LTCG ON SALE OF CERTAIN SHARES OF S INGLE ENTITY NAMELY M/S SRK INDUSTRIES LTD. IT IS EVIDENT THAT AFTER AP PRECIATING THE SAME AND ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 6 BEING SATISFIED WITH ASSESSEES CLAIM, THE ASSESSME NT WAS FRAMED WHEREIN LD. AO CHOSE NOT TO ALTER THE RETURNED INCO ME OF THE ASSESSEE. 3.3 SUBSEQUENTLY, LD. PR. CIT, AFTER PERUSAL OF CAS E RECORDS, NOTED THAT THE REASON FOR SELECTION OF CASE UNDER SCRUTINY WAS SUSPICIOUS LONG-TERM CAPITAL GAIN ON SHARES. IT WAS SEEN THAT THERE WAS AN INFORMATION BY DGIT (INV.) RELATED TO TRADE BY ASSESSEE IN PENNY S TOCK. AS PER THE INFORMATION, THE ASSESSEE SOLD 44000 SHARES OF M/S SRK INDUSTRIES FOR RS.80.41 LACS. ALTHOUGH LD.AO, VIDE NOTICE U/S 142( 1), REQUIRED THE ASSESSEE TO FURNISH THE DETAILS OF SHARE TRANSACTIO NS, HOWEVER, IN THE ASSESSMENT ORDER THERE WAS NO DISCUSSION WITH REGAR D TO CLAIM OF LTCG ON SALE OF PENNY STOCK SHARE OF M/S SRK INDUSTRIES LTD. THEREFORE, A SHOW-CAUSE NOTICE WAS ISSUED ON 25/02/2019, A COPY OF WHICH IS ON RECORD. IN THE NOTICE, IT WAS STATED THAT ASSESSMEN T ORDER CONTAINED ASSESSEES AFFIDAVIT THAT THE AFORESAID INCOME WAS DECLARED UNDER INCOME DECLARATION SCHEME, 2016. BUT NO SUCH PROOF OF DISCLOSURE WAS ON RECORD. FURTHER, THE RECORD SHOWED THAT THERE WA S NO SUCH DISCLOSURE BY THE ASSESSEE. 3.4 THE ASSESSEE, VIDE RESPONSE DATED 04/03/2019 DE MANDED COPY OF OFFICE NOTE CONTAINING SAID FACTS. CONSEQUENTLY, AN OTHER NOTICE WAS ISSUED ON 06/03/2019 WHEREIN IT WAS STATED THAT THE RE WAS NO NEED TO FURNISH THE OFFICE NOTE. THE ASSESSEE MAY AFFIRM OR DENY SUCH STATEMENT MADE TO AO. THE ASSESSEE, VIDE SUBMISSIONS DATED 19 /03/2019, INTER- ALIA, SUBMITTED THAT ISSUE OF LTCG WAS DULY EXAMINED BY L D.AO DURING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS. THE A SSESSEE AGAIN DEMANDED THE DETAILS OF OFFICE NOTE AND REQUESTED F OR THE COPIES OF PROCEEDINGS SHEETS, COPY OF AFFIDAVIT STATED TO BE FILED BY THE ASSESSEE ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 7 AND OTHER DOCUMENTS WHICH WOULD ESTABLISH THAT LTCG CLAIM WAS NOT PROPER. IN OTHER SUBMISSIONS DATED 25/03/2019, THE ASSESSEE REITERATED THAT THE ISSUE OF LTCG WAS DULY EXAMINED BY LD.AO D URING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS. THE ASSESSEE ALS O DENIED HAVING MADE ANY AFFIDAVIT OR COMMITMENT TO DECLARE INCOME UNDER THE INCOME DECLARATION SCHEME, 2016. THEREFORE, THE ASSESSEE P LEADED FOR DROPPING OF PROCEEDINGS U/S 263. 3.5 HOWEVER, NOT CONVINCED WITH ASSESSEES SUBMISSI ONS, THE ASSESSMENT ORDER WAS TERMED AS ERRONEOUS AND PREJUD ICIAL TO REVENUE IN TERMS OF EXPLANATION-2 TO SEC. 263. FINALLY, THE OR DER WAS SET-ASIDE AND LD.AO WAS DIRECTED TO REDO THE ASSESSMENT AFTER GIV ING OPPORTUNITY OF HEARING TO THE ASSESSEE. AGGRIEVED AS AFORESAID, TH E ASSESSEE IS UNDER FURTHER APPEAL BEFORE US. 4. UPON CAREFUL CONSIDERATION OF FACTUAL MATRIX AS ENUMERATED IN PRECEDING PARAGRAPHS, IT IS QUITE EVIDENT THAT THER E WAS PROPER DISCLOSURE OF EXEMPT LTCG IN ASSESSEES COMPUTATION OF INCOME. THE TRANSACTIONS WERE DULY EXPLAINED BY THE ASSESSEE WITH REQUISITE DOCUMENTARY EVIDENCES DURING THE COURSE OF REGULAR ASSESSMENT P ROCEEDINGS. THE ASSESSMENT ORDER TAKES NOTE OF THE FACT THAT VARIOU S DETAILS WERE CALLED FROM ASSESSEE WHICH WERE DULY SUBMITTED AND PLACED ON RECORD. THESE DETAILS INCLUDE NOTES AND EXPLANATIONS ON THE ISSUE S THAT CAME UP FOR DISCUSSION DURING THE COURSE OF HEARING. THEREFORE, IT COULD BE CONCLUDED THAT THERE WAS DUE APPLICATION OF MIND BY LD. AO ON THE STATED ISSUE AND THE CLAIM WAS ADMITTED AFTER DUE VERIFICATION. MERE LY BECAUSE THE ISSUE WAS NOT ELABORATELY DISCUSSED IN THE QUANTUM ASSESS MENT COULD NOT BE ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 8 A GROUND TO INVOKE REVISIONAL JURISDICTION U/S 263 PARTICULARLY WHEN THE DETAILS CALLED FOR BY LD. AO WERE SUBMITTED AND PLA CED ON RECORD. 5. ANOTHER FACT TO BE NOTED THAT THE COPIES OF DOCU MENTS / OFFICE NOTE WHICH FORMED THE BASIS OF INVOCATION OF JURISDICTIO N WAS NEVER SUPPLIED TO THE ASSESSEE. THE ASSESSEE ALL ALONG DENIED HAVING MADE ANY SUCH AFFIDAVIT THAT AFORESAID INCOME WAS DECLARED UNDER INCOME DECLARATION SCHEME, 2016. HOWEVER, THE COPY OF THE AFFIDAVIT, S TATED TO BE IN ASSESSMENT RECORDS, WAS NEVER CONFRONTED TO THE ASS ESSEE TO CONTROVERT HIS SUBMISSIONS. MERE SUSPICION COULD NOT BE A GROU ND TO INVOKE JURISDICTION U/S 263. IT WAS OBLIGATORY ON THE PART OF REVISIONAL AUTHORITY TO DEMONSTRATE THAT THE ORDER WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE FIND THAT THERE IS NO A DEQUATE MATERIAL ON RECORD WHICH WOULD DEMONSTRATE THE FULFILLMENT OF B OTH THESE CONDITIONS. THEREFORE, THE REVISIONAL JURISDICTION U/S 263 COUL D NOT BE SUSTAINED IN THE EYES OF LAW. BY QUASHING THE SAME, WE ALLOW THE APPEAL. 6. RESULTANTLY, THE APPEAL STANDS ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 11TH SEPTEMBER, 2020. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 11/09/2020 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT 3. 1 ( ) / THE CIT(A) 4. 1 / CIT CONCERNED 5. 23),4 , 4 , / DR, ITAT, MUMBAI 6. 3567 / GUARD FILE ITA NO.3740/MUM/2019 SMT. BHAVNA B. KOTHARI ASSESSMENT YEAR :2014-15 9 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.