TMI Blog2019 (12) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... show that from where the purchasers have paid the money. Thus, the onus as cast upon the assessee stood duly discharged and Assessing Officer has correctly allowed the claim of Long Term Capital Loss. Revisionary order passed u/s.263 by the ld. CIT cancelling the assessment order is not sustainable and hence is quashed. Thus, the appeal of the assessee is allowed. - I.T.A. No.2055/DEL/2019 - - - Dated:- 11-10-2019 - Shri Amit Shukla, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Appellant : Shri V.P. Gupta, Adv. For the Respondent : Shri Sulekha Verma, Sr.D.R. ORDER PER AMIT SHUKLA, JM: The aforesaid appeal has been filed by the assessee against the impugned order dated 31.01.2019, passed by Commissioner of Income Tax (International Taxation)-3, New Delhi in his revisionary jurisdiction u/s. 263 cancelling the assessment order dated 07.012.2016, passed u/s.143(3) for the Assessment Year 2014-15. In the grounds of appeal, the assessee has raised the following grounds: 1. That the Commissioner of Income-tax (Intl. Tax) -3, New Delhi, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easuring 114.6 sq. mtrs. within the city of Roorkee. The land was devolved to the assessee on family partition amongst brothers as per award of Sole Arbitrator registered on 28.11.1983. The assessee s case was selected for scrutiny on the ground of Long Term Capital Gain and cash deposits in bank account and assessee have also transferred one or more properties during the year . 3. As brought on record by the ld. counsel for the assessee that during the course of assessment proceedings before the Assessing Officer, the assessee had submitted all the relevant documents vide letter dated 03.11.2016 along with copy of valuation report, statement of computation of capital gain, copies of sale deeds, bank statements, etc. All these documents have also been placed in the paper book before us from pages 21 to 450. Thereafter, the Assessing Officer specifically required the assessee to furnish further details and explanation vide letter dated 18.11.2016 along with the copy of awards and details regarding mode of sale consideration receipt from each of the buyers of the land. All these documents were furnished before the Assessing Officer. The copies of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deducted by any of the persons to whom land was sold. Thus, there was a clear default on the part of the purchaser as per the provision of Section 195, and therefore, proceedings u/s.201 has been initiated in all purchases. No inquiries were conducted by the Assessing Officer on any of the purchases regarding the genuineness of the transaction of the payment made. 4. In response, the assessee filed the detailed submission and reply explaining the position in respect of each of the observation made by the Ld. CIT in his show cause notice giving reference to the documents already submitted during the course of assessment proceedings which were also submitted before the Ld. CIT. The relevant reply of the assessee has been incorporated in the impugned order from pages 3 to 6. However, the Ld. CIT rejected the assessee s explanation and canceled the assessment order after observing and holding as under: a. It is evident from the records that during the year under consideration, the assessee was maintaining two banks accounts namely, with Punjab National Bank and Deutsche Bank. Cash amounting to ₹ 1,07,81,000/- was deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to frame the assessment afresh as directed above after granting due opportunity of being heard to the assessee. 5. Before us, the ld. counsel for the assessee submitted that the Ld. CIT has wrongly observed that the copy of map and the bank statement was given during the revisionary proceedings. However, the fact of the matter is that all these documents were duly submitted before the Assessing Officer along with copy of valuation report and map of the area and also the award. The complete details regarding sale consideration received from sale through sale deed deposited in the bank account were also submitted. The Assessing Officer had examined all the cash deposits in the bank account after reconciling it with the sale deed, has accepted the computation of the capital gain. The assessee had sold small piece of land of ₹ 114.6 sq. mtrs. and also aggregate area of land of 6207.08 sq. mtrs out of the area in the valuation report of 16561 sq. mtrs. The entire saleable area sold during the year has been mentioned in each of the sale deed. Balance area of the land was sold in the subsequent years. The observation of the ld. CIT to the fact that TDS was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d together. Further Explanation-2 inserted by the Finance Act, 2015 w.e.f. 01.06.2015, provides that the order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interest of revenue; firstly, the order is passed without making inquiries or verification; secondly, order is passed without inquiring into the claim; thirdly, order has not been made in accordance with any order, direction or instruction issued by CBDT; and lastly, order has not been passed in accordance with any direction which is prejudicial to the assessee rendered by the Hon ble Jurisdictional High Court or Hon ble Supreme Court. Thus, it is sine quo non that for treating the order passed by the Assessing Officer to be erroneous and prejudicial to the interest of Revenue, the order passed by the Assessing Officer is without making inquiries or verification or is not in accordance with order/instruction passed by the CBDT or Hon ble Jurisdictional High Court or Hon ble Supreme Court. It is also quite settled law that the ld. CIT while exercising his revisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land at the back side was valued at ₹ 500 per sq. mtr. He also noted that out of 16561 sq. mtr, the salable land was only 13670 sq. mtr and he has determined the value as on 01.04.1981 at ₹ 77,29,410/-. Along with valuation report, he has also given the lay out plan of the map of the land. Apart from that, the copy of sale deed of all the 32 buyers have also been filed wherein the sale consideration received as per the circle rate and also the calculation of amount given in cash and cheque has been duly mentioned. The cash receipt on the sale of such land has been deposited in the bank account of the assessee with PNB, Roorkee. The assessee has also given the detail of the Deutsche Bank, New Delhi along with copy of bank statement showing the nature of transactions. It was categorically mentioned that the cash received on the sale of land as mentioned in the sale deed were deposited in the PNB, Roorkee. Thereafter, the Assessing Officer had asked for further details, in response to which the assessee had submitted the manner in which land was inherited from his forefathers and how it was acquired much before 01.04.1981. The details of the partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land use of approx. 121.15% of the sellable area. While computing the capital Gains the cost of acquisition was taken by grossing up the saleable area of the unit, concerned. ii) In regard to cost of acquisition for sale of plot size of 14.600sq. mtr., it is stated that this particular plot is not the part of valuation report. It was separate and independent plot located at 30 Civil Lines, Roork.ee, Tehsil Roorkee, Distt. Haridwar, Uttrakhand. The valuation report is relating to a large piece of land which was located outside the locality. This particular piece of land which was within the locality was sold for a total consideration of ₹ 13.50 lacs i.e. that is @ of 11780/ sq. mtr. the aforesaid sale consideration was at much higher sales consideration or even notified rate for the area for which the valuation report relate. In facts considering the location of this particular plot fair market value as on 01/04/1981 was even more that a ₹ 1225/sq. mtr. that is the higher rate mentioned in the valuation report. Since this was a small piece of land no separate valuation report was obtained and the rate 1000/sq. mtr. was adopted on a conservative side an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On such an explanation there is no rebuttal or any reasons given to reject such an explanation which has been duly explained properly. Thus, this ground taken by the ld. CIT cannot be upheld. 11. Lastly, with regard to the fact that no TDS was deducted by any of the purchasers, first of all, is not relevant to the issue arising from the assessment order; and secondly, nowhere it has been brought on record by the ld. CIT that any particular sale of land had gone beyond the threshold of deducting TDS, i.e., more than ₹ 50 lacs. Thus, there was no occasion to invoke or initiate any proceedings u/s.201. 12. Simply setting aside the assessment order without undertaking any prima facie minimal inquiry to hold that verification and inquiry conducted by the Assessing Officer is not correct or inadequate; it cannot be held that assessment order is erroneous and prejudicial to the interest of revenue. This has been held so in the catena of judgment by the Hon ble Jurisdictional High Court as cited above. Here in this case, the ld. CIT has failed to conduct any kind of inquiry or verification himself and has simply on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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