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2017 (2) TMI 1185 - ITAT DELHIRevision u/s 263 - Lack of inquiry - Held that:- On the issue of provisions of section 50C applicability AO has apparently not applied his mind to the applicability of the provisions of section 50 C of the income tax act to the sale consideration shown by the assessee when the sale deed was also available before him where the fair market value of the property was shown as 58.75 lakhs. In view of this we are of the opinion that Ld. assessing officer has not conducted any Inquiry on this aspect of the computation of capital gain and therefore the order of the Ld. assessing officer is erroneous and prejudicial to the interest of the revenue on this count. With respect to the claim of the long-term capital loss shown by the assessee on per usual of query letter dated 13/07/2009 issued by the Ld. assessing officer he has asked the details of loss of ₹ 36.75 lakhs claimed by the assessee while computing the long term capital gains. Further there is no evidence on record that the Ld. assessing officer before allowing the set-off has considered whether the loss shown by the assessee in assessment year 2006 2007 is allowable as set-off during the year or not. The Ld. CIT has further stated that only on 02/06/2008 the principal Corporation of Google was constituted and further the certificate obtained by the assessee dated 7 07/04/2015 also shows that during the course of original assessment proceedings for assessment year 2007 08 the issue was not at all examined whether the impugned land sold in assessment year 2006 07 was situated within 8 km or beyond 8 km of the limits of the municipal corporation. Therefore, according to us the assessing officer has allowed the set-off of the loss to the assessee without examining the facts at all. With respect to the capital gain on sale of shares of a company assessing officer has allowed the claim of the assessee under section 10 (38) of the income tax act without examining whether the security transaction tax has been paid on the sale of the shares or not. The query letter as relied upon by AR only shows that the assessing officer has enquired about the details about acquisition of those source and mode of payment for acquisition of the same as well as evidence for sale of shares and mode of receipt of sale proceeds. According to us these are not the necessary enquiries to be made for the purpose of exemption to be granted to the assessee under section 10 (38) of the income tax act. In view of this the order of the Ld. assessing officer is erroneous and prejudicial to the interest of the revenue to that extent. In the present case the assessment proceedings conducted by the Ld. assessing officer clearly falls within the parameters of Lack of inquiry. Therefore there cannot be any fault found with the order of the Ld. CIT in assuming his jurisdiction under section 263 of the income tax act. In view of our above finding we dismiss the appeal of the assessee challenging the order of Ld. CIT under section 263 of the income tax act. - Decided against assessee
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