Allowing the appeal of the revenue the Court held that  when the Assessing Officer examined and disallowed exemption claimed by assessee under section 10(38) in respect of long-term capital gains arising out of sale of shares on ground that company in which assessee invested was a penny stock company, which was affirmed by the Commissioner (Appeals ). Tribunal, without finding an error in approach of Assessing Officer could not have remanded back matter to Assessing Officer for fresh consideration. (AY.  2010-11)