TMI Blog2018 (2) TMI 1984X X X X Extracts X X X X X X X X Extracts X X X X ..... may not been considered or appealed in such appeal When the subject matter of disallowance was pending adjudication before the ld. CIT(A). The ld. CIT ought not to have revised the order for passing assessment order afresh. Our view is also supported by the provision contained under section 251 of the Act, wherein the appellate Commissioner has a power to confirm, reduce, enhance or annul the assessment order. Even on other alternative argument, we may note that the Hon ble Supreme Court in Malabar Industrial Co. Ltd. vs. CIT [ 2000 (2) TMI 10 - SUPREME COURT] held that where two view was possible and the AO has taken one view. The order of ld. CIT revising order in such circumstances cannot be treated as order erroneous or prejudicial to the interest of Revenue. - Decided in favour of assessee. - ITA No. 5129//Mum/2012, ITA No. 1435//Mum/2014 - - - Dated:- 5-2-2018 - SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For the Assessee : Shri Vipul Joshi (AR For the Revenue : Shri Bhupendra Kumar Singh (DR) Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeal by assessee unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by the order of assessment, the assessee filed appeal before the ld. CIT(A), challenging the additions on account of working the LTCG. Subsequently, the assessment order was revised by ld. CIT-19. The ld. CIT-19 vide its order dated 23.07.2012 and set-aside the order passed under section 143(3) dated 26.12.2011. While setting aside the assessment order , the AO was directed to make further enquiry and pass the afresh, after making enquiry with regard to Fair Market Value of the asset received or to be received in exchange of consideration and recalculate the LTCG. Thus, aggrieved by the order of ld. CIT-19, the assessee has filed the present appeal before us. 3. We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee argued that the AO passed the assessment order after making full-fledged enquiry and recomputed the LTCG. The assessee has disclosed all information and furnished replies to the relevant query raised by AO during the assessment proceedings. After satisfaction of the reply of the assessee, the assessing officer passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or the commission is not in agreement with the view taken by AO would not render the assessment order erroneous and prejudicial to the interest of revenue. The reliance is made in case of CIT vs. Max India Ltd. [(2007) 295 ITR 282 (SC)], Grasim Industry Ltd. vs. CIT [(2010) 321 ITR 92 (Bom)], CIT vs. LIC Housing Finance Ltd. [(2014) 367 ITR 458 (Bom)], CIT vs. Gera Developments (P) Ltd. [(2016) 387 ITR 691(Bom)] and CIT vs. Kiran Hirji Shah [(2015) 56 taxmann.com 360(Bom)]. 6. In further alternative submission, the ld. AR of the assessee submits that no revisional power should be exercised for directing full enquiry, where the AO has already conducted sufficient enquiry and has taken a possible view after the enquiry. The power of revision can only exercise, where no enquiry as required under law is done. Reliance is made in case of CIT vs. Nirav Modi [(2017) 390 ITR 292 (Bom)], CIT vs. Nirav Modi [(2017) 77 taxmann.com 15(SC)], CIT vs. Nirav Modi [(2017) taxmann.com 78 (SC)], CIT vs. Sunbeam Auto Ltd. [(2011) 332 ITR 167 (Del)], CIT vs. Anil Kumar Sharma [(2011) 335 ITR 83 (Del)], CIT vs. New Delhi Television Ltd. [(2014) 360 ITR 44 (Del)]. 7. In other alternative submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew. The order of ld. CIT revising order in such circumstances cannot be treated as order erroneous or prejudicial to the interest of Revenue. In view of the above, we accept the appeal of the assessee and set-aside the impugned order passed by ld. CIT under section 263 dated 23.12.2012. 10. In the result the appeal of the assessee is allowed. ITA No. 1435/Mum/2014 11. The perusal of record reveals that the present appeal is filed after 292 days of prescribed period of limitation. Perusal of the record reveals that the assessee has filed an affidavit of Sh. Bibhuti B. Dasgupta Karta of aassessee firm in support of condonation of delay in filing the appeal. In the affidavit, the assessee has contended that the order passed by ld. CIT(A) dated 11.02.2013 on 13.03.2013 and the appeal is filed on 28.02.2014. It is further stated that against the assessment order, the assessee filed appeal before the ld. CIT(A) on 11.02.2002. During the pendency of appeal, the assessee received notice under section 263 from ld. CIT-19 for revising the assessment order framed under section 143(3). The assessment order was revised by ld. CIT-19 against which appeal was filed before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
