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2022 (8) TMI 514 - AT - Income TaxRevision u/s 263 - AO was required to disallow the indexation and deduction claimed u/s 54F which he failed to do - HELD THAT:- Merely, the assessee has made it sellable and divided into plots that activity itself will not change the capital asset into business asset. The appreciation in the price is done over a period of holding by the assessee in the same character and therefore, on sale of that asset the relevant benefit of the capital assets cannot be considered as business profit. This sale transactions cannot be considered in isolation without considering the intention of the assessee so far holding it as capital asset, consequent to that income arising from that asset also in the nature of capital gain. AO has called for all the details related to capital gain and details on which the deduction u/s. 54F was claimed verified and taken a view is based on the facts supported by records placed before AO and he has applied his mind on the issue. Thus, we our considered view the AO has made inquiry call for the records upon which he has passed the order and that order cannot be revised merely there is another view possible. At this juncture we would like to rely on the CBDT’s circular F.No.225/12/2016/ITA.II dated 02.05.2016 which state that once the stand taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent year also and the taxpayers shall not be allowed to adopt a different / contrary stand in this regard in the subsequent years. This circular is issued by the CBDT to avoid litigation which the department should not use to create litigations. Thus, the view taken by the assessee that a particular investment is of capital in nature and declared the same since the amount invested same subsequent to that at the time of sale merely the assessee, he divided in to small plot to sell that capital asset cannot be termed as business assets. As in our considered view, as the A.O while framing the assessment had taken a plausible view, and treated the gain as Capital Gain and consequent thereupon allowed the assesseeıs claim for deduction under section 54F of the Act also. Therefore, the Pr. CIT was in error in exercising his revisional jurisdiction u/s 263 for dislodging the same. Accordingly, we find no justification on the part of the Pr. CIT, who in exercise of his powers under Sec. 263 had dislodged the view that was taken by the A.O as regards chargeability of gain and consequent there upon allowability of deduction on the capital gain, we set-aside his order and restore the order passed by the A.O under Sec. 143(3) - Assessee appeal allowed
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