TMI Blog2024 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ue involved as the assessee claimed the set off of long-term capital loss while offering short-term capital gain in accordance with law which has remained un-controverted even by the departmental representative as well as the appellant. Tribunal has therefore, rightly come to the conclusion that the PCIT would not have any jurisdiction to invoke the powers under section 263 since the findings of error is essential for invoking such power and AO taking a plausible view in the matter, the assessment order cannot be said to be erroneous so as to cause prejudice to the Revenue. Considering the reasons assigned by the Tribunal for allowing the appeal filed by the assessee challenging the order u/s 263 we do not find any infirmity in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order under section 143(3) of the Act, 1961 was finalized determining the income from the business and other sources at Rs. 53,38,05,487/- including the capital gain at Rs. 2,02,85,487/-. 3. Noticing that though the assessee had sold the depreciable assets i.e. building, residential flats forming part of the block assets Building residential in the fixed assets for a consideration of Rs. 3,45,76,499/- during the Financial Year 2016-17 relevant to Assessment Year 2017-18, it was observed by the PCIT that the computation of income for the year under consideration, the assessee had worked out short-term capital gain on sale of the depreciable assets at Rs. 2,96,48,487/- and after claiming set off of brought forward long-term capital l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order in allowing set off of brought forward Long Germ Capital Loss against Short Term Capital Gain returned u/s 50 of the Act since it was accordance with law. For that matter even the Ld. DR was unable to contradict the contention of the assessee that its claim was in accordance with law as interpreted by the Hon ble jurisdictional High Court. 6.3 Besides the Ld. Counsel for the assessee has placed before us copies of the decision of the Hon ble Jurisdictional High Court in the case of Aditya Sales (supra) and Polestar Industries (supra) relied upon by the assessee in support of its contention that its claim of set off of brought forward long term capital loss against short term capital gain returned u/s 50 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid power and AO taking a plausible view on the matter, his order cannot be said to be erroneous so as to cause prejudice to the Revenue. The Hon ble apex court has laid down that where AO takes a plausible view there cannot be said to be any error in his order so as to invoke revisionary powers u/s 263 of the Act in the case of Kwality Steels 395 ITR 1(SC). 6.5 For this reason alone, the order passed by the Id. PCIT needs to be set aside being not in accordance with the powers given to him under Section 263 of the Act, having been exercised without finding error in the order of the Assessing Officer. 7. We have noted that Id. PCIT has exercised his revisionary for the purpose of verifying the claim of the assessee. It is few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that though the Assessing Officer might have committed an error while computing the assessment order but in fact, the Tribunal has considered this aspect in detail and has held that there is no finding of any error by the PCIT in the order of the Assessing Officer with respect to the issue involved as the assessee claimed the set off of long-term capital loss while offering short-term capital gain in accordance with law which has remained un-controverted even by the departmental representative as well as learned counsel Mr. Raval appearing for the appellant. The Tribunal has therefore, rightly come to the conclusion that the PCIT would not have any jurisdiction to invoke the powers under section 263 of the Act, 1961 since the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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