TMI Blog2014 (6) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the matter, applied his mind to the materials on record and the view taken by him on the assessability of the receipt is one of the possible views, the assessment order passed by him cannot be considered to be erroneous and prejudicial to the interests of revenue - Only because the CIT considers the receipts as windfall gain and in his opinion such receipt has to be assessed as income from other sources, the assessment order cannot be held to be erroneous and prejudicial to the interests of revenue so as to empower the CIT to revise it u/s 263 of the Act - the exercise of power u/s 263 of the Act is not justified – Decided in favour of Assessee. - I.T.A. No. 827/Hyd/2013 - - - Dated:- 28-5-2014 - Shri B. Ramakotaiah And Shri Saktijit Dey,JJ. For the Petitioner : Shri P. Murali Mohan Rao For the Respondent : Shri P. Somasekhar Reddy ORDER Per Saktijit Dey, JM: The present appeal of the assessee is directed against order dated 13/03/2013 passed by the CIT-I, Hyderabad u/s 263 of the Act pertaining to AY 2008-09. 2. Briefly stated, the assessee an individual is pursuing his profession as film director. For the impugned assessment year, assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer after verifying the details came to the conclusion that assessee is not entitled for exemption u/s 54F of the Act. Accordingly, Assessing Officer completed the assessment u/s 143(3) of the Act vide order dated 29/12/2010 determining total income at Rs. 2,12,02,600/-. 4. The CIT exercising his power u/s 263 of the Act called for the assessment records of the assessee for the assessment year under consideration and after verifying the same was of the view that the amount received by the assessee from the land owner Sri Dhananjaya Reddy being a windfall gain should have been assessed as income from other sources and not as long term capital gain. The Assessing Officer having assessed it as long term capital gain, the CIT considered the assessment order to be erroneous and prejudicial to the interest of Revenue. Accordingly, the CIT issued a show cause notice to the assessee proposing to revise the assessment order. 5. In response to the show cause notice, assessee submitted his reply stating therein that the Assessing Officer having passed the assessment order after causing necessary enquiry and with due application of mind to the facts and materials on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset also amounts to transfer. Therefore, when the assessee relinquished his rights over the asset on receiving certain consideration, there is a transfer in terms of section 2(47) of the Act and the gain from such transfer has to be assessed as capital gain. In support of his contention the Learned AR relied upon the decision in case of Malabar Industrial Co. Ltd. Vs. CIT, 243 ITR 83 (SC). 8. The learned DR submitted that the Assessing Officer without properly examining the issue has erroneously concluded that the assessee has sold the plot. As the assessee has not sold any plot the amount received by the assessee on settlement of dispute cannot be treated as capital gain but only in the nature of a windfall gain which is to be assessed as income from other sources. Therefore, the CIT was justified in revising the assessment order u/s 263 of the Act. In support of his contention, the learned DR relied upon a decision in case of CIT Vs. J. Dalmia, 149 ITR 215 (Del.) 9. We have heard the parties and perused orders of the revenue authorities as well as other materials on record. We have also applied our mind to the decisions placed before us. At the outset it needs to be stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) the sale, exchange or relinquishment of the asset ; or (ii) the extinguishment of any rights therein ; or (iii) the compulsory acquisition thereof under any law ; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment ;] [or] (iva) the maturity or redemption of a zero coupon bond; or] [(v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) ; or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property. [Explanation 1].-For the purposes of sub-clauses (v) and (vi), immovable property shall have the same meaning as in clause (d) of section 269UA.] [Explanation 2.-For the removal of doubts, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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