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Facts
The assessee filed an appeal against the revision order passed by the Principal Commissioner of Income-tax (PCIT) under Section 263 of the Income Tax Act, 1961. The PCIT's order pertained to the assessment order passed under Section 147 r.w.s. 144B for AY 2018-19. The revision was initiated due to the belief that the assessment order was erroneous and prejudicial to the revenue, specifically concerning Long Term Capital Gains (LTCG) of Rs. 24,39,772/- from the sale of shares.
Held
The Tribunal held that the PCIT erred in invoking jurisdiction under Section 263 as the assessment order was not erroneous and prejudicial to the revenue. The AO had conducted adequate inquiries, and the revision was based on a mere change of opinion. Reliance was placed on Supreme Court and High Court decisions stating that Section 68 cannot be applied to screen-based transactions and that a debatable issue cannot be subjected to revision under Section 263.
Key Issues
Whether the PCIT rightly invoked Section 263 of the Income Tax Act, 1961, to revise the assessment order, and if the transactions related to Long Term Capital Gains were genuine and taxable under Section 68.
Sections Cited
263, 147, 144B, 68, 10(38), 148A(b), 142(1), 115BBE
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Before: SHRI SANDEEP GOSAIN & SHRI PRABHASH SHANKAR
Date of Hearing 10.12.2025 Date of Pronouncement 02.02.2026 आदेश / O R D E R PER PRABHASH SHANKAR [A.M.] :- The present appeal is filed by the assessee against the Revision order u/s 263 of the Act passed by the Principal Commissioner of Income-tax, PCIT, Mumbai-8 [hereinafter referred to as “PCIT”] pertaining to assessment order made u/s. 147 r.w.s. 144B of the Income- tax Act, 1961 [hereinafter referred to as “Act”] dated 28.02.2023 for the Assessment Year [A.Y.] 2018-19. P a g e | 2 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) 2. The grounds of appeal are as under:-
1. On the facts and circumstances of the case and in law, the Learned Principal Commissioner of Income Tax, [hereinafter referred to as “Ld. PCIT”] erred in invoking jurisdiction under Section 263 of the Income Tax Act, 1961 (“the Act”) and passing the impugned order dated 01/02/2025, which is bad in law and liable to be quashed for various reasons including that the very assessment which has been revised is bad in law.
2. On the facts and circumstances of the case and in law, the assessment order passed by the (“Ld. AO”) under section 147 read with section 144B of the Act dated 28/02/2023 is erroneous and prejudicial to the interests of the revenue, without satisfying any of the mandatory conditions laid down under section 263 of the Act.
3. Without prejudice to the foregoing and to the submissions made in appeal against assessment before Ld CIT(A), and on the facts and circumstances of the case and in law, the Ld. PCIT has failed to appreciate that the assessment order dated 28/02/2023 was passed after due consideration of all material facts, submissions, and evidence furnished by the Appellant, and Ld PCIT himself accepts the same hence, there was no error in the said order within the meaning of section 263 of the Act.
4. Without prejudice to the foregoing and on the facts and circumstances of the case and in law has relied on the provisions of 68 as applicable to the primary transactions of allotment of shares of a Company ignoring the fact the impugned transactions were transactions in the secondary market and hence on this ground also the impugned order is bad in law. Even the table of figures of additional tax payable given by Ld PCIT is misleading.
5. On the facts and circumstances of the case the Ld. PCIT has grossly erred in holding for various reasons that the Long Term Capital Gain (“LTCG”) of Rs. 24,39,772/-arising from the sale of shares of Florence Investech Ltd. is bogus and further erred in directing that such LTCG should be taxed as unexplained cash credit under section 68 of the Act without any material evidence on record.
6. The Ld. PCIT has failed to appreciate that: a) The transactions of purchase and sale of shares of Florence Investech Ltd. were conducted through recognized stock exchanges in a transparent manner. b) The Appellant has provided all necessary documentary evidence, including demat statements, bank statements, contract notes, and details of transactions, to establish the genuineness of the capital gains.
P a g e | 3 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) c) No specific evidence has been brought on record to prove that the transactions in the said shares were fictitious or manipulated. d) The holding period of the shares was substantial, demonstrating the genuine investment nature of the transactions.
That the Ld. PCIT has erred in assuming jurisdiction under section 263 solely on the basis of a change of opinion and without establishingthat the assessment order was erroneous as well as prejudicial to the interest of the revenue.
The Ld. PCIT has misinterpreted and misapplied the decision of the Hon’ble Supreme Court in PCIT v. Kuntala Mohapatra [2024] 160 taxmann.com 608 (SC), which in fact supports the Appellant’s case regarding the genuineness of the LTCG claim.
Without prejudice to the foregoing, on the facts and circumstances of the case and in law, the Ld. PCIT has erred in directing the Ld. AO to reframe the assessment by applying section 68 of the Act without appreciating that the AO had already observed the matter in detail and taken a conscious decision, which is not open for revision under section 263.
The Ld. PCIT’s computation of short levy of tax at Rs.59,94,019/-, is also erroneous.
The revision order passed under section 263, is bad in law and contrary to the facts and circumstances of the case.
In this case, as per facts narrated in the impugned order the return of income was filed by the assessee declaring total income Rs. 2,47,64,810/- for the relevant year. The assessee is an Individual and during the year derived income from Salary, House Property, Capital Gain and Income from Other sources. On perusal of the assessment records, it was observed by the ld.PCIT that the case was selected under CASS under LT&ST Bogus. Further, as per the information available, it was observed that during the year, the assessee had received bogus Long Term Capital Gain on sale of bogus Penny scrip i.e. M/s. Florence P a g e | 4 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) Investech Ltd.(FIL),a Kolkata based company and the case was re- opened and the assessment was finalized under section 147 r.w.s. 144B of the Actdetermining assessed income at Rs. 2,72,04,582/- after addition of Rs. 24,39,772/-, being bogus LTCG claimed u/s. 10(38) of Act. Scrutiny of assessment details revealed that during the year, the income was assessed at Rs. 2,72,04,582/- on which tax was required to be levied as per the applicable rates. However, it was observed that there was short levy of tax to the extent of Rs. 59,94,019/-.Besides, the AO had widely discussed the issue of ‘Bogus LTCG’ of Rs. 24,39,772/- generated from ‘Bogus Penny Scrips’ of FIL and the same was added back to total income of the assessee. It was stated that department in other cases had considered the bogus LTCG of Penny Scrips being ‘Unexplained Cash Credit u/s 68 and taxed u/s 115BBE of Act. Since, in the case of the assessee the AO had made similar addition on bogus LTCG of Penny Scrips, hence, in view of similar nature of transaction and to protect interest of revenue, such addition was also required to be considered being ‘Unexplained Cash Credit u/s 68 of the Act’ and the same was required to be taxed u/s 115BBE @60% and surcharge @25% of Act, which was not done.
P a g e | 5 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) 3.1 It is further stated that the AO had analysed the trade volume and trade count by furnishing various available data and has also described the modus operandi regarding the basic aim of income tax evasion. The AO had explained in paragraph 10.7.1 of the assessment order that the entry operator of the penny stock routes the unaccounted money of LTCG beneficiaries into their account/books in the garb of Long Term Capital Gain. This entry of LTCG was taken by selling the shares on the stock exchange and registering the proceeds arising out of the sale of shares into the books as LTCG. For implementing this scheme shares of some penny stocks are used and the same modus is adopted for providing accommodation entry of bogus loss where the loss taking party evades its tax liability by reducing the profit. The observations of the AO was found correct in his analysis of penny stock companies and bogus LTCG and STCG. The ld.PCIT, however, proposed to set aside the assessment order u/s 263 of the Act in view of above observations.
3.2 In response to the show cause notice issued in this regard, assessee submitted a detailed reply contesting the proposed action. The ld.PCIT observed further that merely because the assessee had submitted bank statements, copy of contract notes and all payments were made by account payee cheque would not prove the genuineness of P a g e | 6 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) the transactions. As elaborated by the AO, penny stock routes the unaccounted money of LTCG beneficiaries into their account/books in the garb of Long Term Capital Gain. This entry of LTCG was taken by selling the shares on the stock exchange and registering the proceeds arising out of the sale of shares into the books as Long Term Capital Gain. This issue had been comprehensively discussed by the AO.Hence considering the facts and circumstance of the case, the assessment order passed u/s. 147 r.w.s. 144B was set aside on the above issues and was erroneous and prejudicial to the interest of revenue. The AO was directed to pass fresh order in accordance with the law and after making necessary enquiries and providing sufficient opportunity to the assessee in accordance with the principles of natural justice.
Before us, the ld.AR has made a detailed submission in this regard. It is submitted that the assessee was a regular investor in shares for over 20 years. Notice u/s 148A(b) was issued and the main contention was that as per the report of the Investigation wing, FIL was found to have an unusual trading pattern. It was alleged that it was dealing in penny stocks/scrip shares. The assessee in the year had sold shares in the said company and claimed long term capital gains. As per the information, it was alleged that he had generated fictitious profits in P a g e | 7 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) equity/derivative trading. In response to show cause notice issued in this regard by the AO the assessee specifically objected/pointed out that there was not even an iota of evidence as to how the transactions of purchase and sale are not genuine. He submitted copy of Demat Statement, ledger of FIL, copy of all Bank Statements and Copy of Sale contract note. However, the AO went ahead in passing order u/s 148A(d) was passed on 31.03.2022 rejecting the contentions of the Appellant stating that the submissions are not found to be tenable. Later, notice u/s 142(1) issued on 19.10.2022.Detailed reply was submitted in response to notice dated 19.10.2022.Notice u/s 142(1) was issued on 10.01.2023. Reply was filed on 21.01.2023 and several documents were filed i.e. details of all the share transactions (both purchases and sales) for the period, details of transactions in the shares of FIL along with contract note copy. Regarding purchase of shares, details of source of investment, proof of payment and highlighted payments in bank statement for purchase of shares were filed as also regarding sale of shares, proof for receipt of payments, demat statement, details of investments made over the last three years and regularity of share trading on the stock exchange or share trading in listed as well as unlisted securities were also submitted. However, the assessment order P a g e | 8 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) was passed making addition of Rs. 24,39,772/- denying exemption us. 10(38) of the Act. Appeal was filed before the National Faceless Appeal Centre. 4.1 As regard the revision proceedings, it is submitted that they are bad in law at the very threshold level itself for invoking Section 68 of the Act because it has been judicially held by the Hon’ble Supreme Court and Hon’ble Bombay High Court that in the case of screen-based trading section 68 cannot be applied. It is well settled that in cases of screen- based, exchange-driven transactions, section 68 has no application. Reliance was placed on the decision in the case of PCIT v. Kuntala Mohapatra [2024] 160 taxmann.com 608 (SC), the Hon’ble Supreme Court (supra), following the decision of the Hon’ble Orissa High Court in Kuntala Mohapatra [2024] 160 taxmann.com 608 (SC) (2024) 160 taxmann.com 567 (Orissa) which upheld the genuineness of transactions where shares were purchased via account payee cheques, held for over 12 months, and sold through recognized stock exchanges after payment of security transaction tax. The assessee was eligible to claim exemption under section 10(38) of the Act for long-term capital gains. Therefore, in view of the above Hon’ble Supreme Court’s decision, even the disallowance of exemption u/s 10(38) was bad in law, and there was no P a g e | 9 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) question of ld.PCIT’s show-cause notice about the applicability of Section 68 of the Act. Reliance was also placed on the decision of the Hon’ble High Court in Principal Commissioner of Income Tax v. Indravadan Jain (HUF) (Order dated 12.07.2023, ITXA No. 454 of 2018), wherein it was held that when shares are purchased and sold through the recognized stock exchange, payments are routed through banking channels, delivery is reflected in the demat account, and contract notes are duly issued, the resultant capital gains could not be treated as unexplained cash credits under section 68 of the Act.
4.2 It is further argued that the very foundation on which the ld. PCIT invoked section 263 did not exist. The cause of action assumed by him thus fails at the inception, rendering the revisionary proceedings void ab initio. Proceedings u/s 263 are bad in law as he erred in invoking jurisdiction as the revision was based on a mere change of opinion and did not satisfy any conditions outlined in explanation 2 to sub-section (1) of Section 263.Thus, the ld. PCIT had deemed that order passed by AO was both erroneous and prejudicial to the interest of revenue. Reliance was also placed on coordinate bench decision in the case of Kishore Jethalal Morabia Vs. Assessing Officer, Assessment Unit, IT Dept. (ITAT-Mum) in dated P a g e | 10 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) 14.07.2025 specifically deleted addition made u/s 68 of the Act for the sale of shares of FIL and covered the case of the assessee who had also supplied all the same details that were provided in this case and the period of holding was longer.
4.3 It is pleaded that in order to invoke jurisdiction under section 263 of the Act, the order must be erroneous and also prejudicial to revenue. If one of the two mandatory conditions was missing, then recourse could not be taken to the section. The jurisdiction could not be exercised if the issue was debatable as held in Malabar Industrial Co. Ltd. v. Commissioner of Income-tax. [2000] 109 Taxman 66 (SC).It is also submitted that the CIT(A) order for A.Y. 2019-20 dated 17.09.2025 decided similar issue in the favor of the assessee deleting the addition made u/s 68 of the Act. Therefore, it was clear that no revision could be made u/s 263 of the Act by making addition u/s 68 of the Act when the first appellate authority itself had held that no case for section 68 disallowance is made out. This also shows that the issue is debatable and no revision can be made. There was no prejudice caused to the interest of the revenue. The assessment order was also under challenge before the CIT(A). The order was awaited. No revision of the same could be done u/s 263 of the Act on an issue that is subject matter of appellate P a g e | 11 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) proceedings. The ld.DR however, supported the revision order and the conclusion dawn therein.
We have carefully considered all aspects of the case. It is noticed from the records, replies submitted that he AO in the instant case has made a detailed investigation and enquiry in the matter before arriving at the conclusion. The addition made by him are stated to be still pending before the first appellate authority in the quantum appeal. We also find that the ld.PCIT has also acknowledged the above facts in the body of the revision order itself. In such a situation, the observations and his findings constitute a mere change of opinion. Moreover, with taking due note of the fact that quantum appeal was already pending on the impugned issue, he was wrong in assuming jurisdiction on the same issue which is not permitted by the provisions of section 263 of the Act. There being adequate enquiry by the AO, it cannot be said that the assessment order was passed without making any enquiry and therefore Explanation 2 to the section was clearly not applicable to the facts of the case. Moreover, as rightly pointed out by the ld.AR that the coordinate bench in another case involving the same scrip had deleted similar addition in the case of Kishore Jethalal Morabiain dated 14.07.2025.Therefore, even on this count, it P a g e | 12 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) could well be concluded that the issue in hand is a debatable one on which different views could be taken and on which section 263 provisions cannot be invoked otherwise also.
5.1 The Hon’ble Supreme Court in the case of Malabar Industries Ltd. v. CIT (supra) have held that twin conditions needs to be satisfied before exercising revisionary jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer’s order was passed on incorrect assumption of fact; or (ii) incorrect application of law, or (iii) Assessing Officer’s order is in violation of the principle of natural justice, or (iv) if the order is passed by the AO without application of mind. (v) if the AO has not investigated the issue before him; because AO has to discharge dual role of an investigator as well as that of an adjudicator then in aforesaid any event the order passed by the AO can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the P a g e | 13 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) interest of the revenue. Their Lordship held when the AO adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue "unless the view taken by the Assessing Officer is unsustainable in law". Thus, in our considered view following Apex Court ruling the Revision order passed by ld. PCIT is not sustainable in law. 5.2 Reference could also be made to the decision of the hon’ble jurisdictional High Court in the case of CIT vs Gabriel India Ltd. (203 ITR 108) (Bom) with regard to assumption of jurisdiction by the PCIT in the para below: "12. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decisions is held to be erroneous. Cases may be visualized where the Income- tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the P a g e | 14 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo-motu revision because the first requirement, viz., that the order is erroneous, is absent." (Emphasis supplied)
5.3 Apart from the above principles, we deem it appropriate to make reference to the decision of the hon’ble Delhi High Court in the case of CIT vs. Sun Beam Auto 227 CTR 113 wherein the Court has pointed out a distinction between lack of inquiry and inadequate inquiry. The following observations are worth noting: "12. We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under section 263 of the Income-tax Act. As noted above, the submission of learned counsel for the revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order which apparently does not give any reasons while allowing the entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry".If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of inquiry", that such a course of action would be open".
Hence, both on legal ground as also on merits, appeal of the assessee has sufficient force. Therefore, respectfully following the above judicial precedents, we hereby quash the Revision order as unsustainable, allowing the grounds of appeal raised by the assessee.
P a g e | 15 A.Y. 2018-19 Mrs. Suneeta Sekhri (Legal Heir of Mr. Anmol Govindram Sekhri) 7. In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 02/02/2026. SANDEEP GOSAIN PRABHASH SHANKAR (न्याययक सदस्य /JUDICIAL MEMBER) (लेखाकार सदस्य/ACCOUNTANT MEMBER)