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2011 (5) TMI 221 - AT - Income TaxRevision u/s 263 - Time limitation - Income escaping assessment - STCG or LTCG - In any case if the appeal before the CIT(A) reopening is held to be without jurisdiction the impugned order under section 263 revising such order itself becomes infructuous and non est - it is crystal clear that the assessee has claimed excess cost of construction which has eventually resulted into under assessment of income of Rs. 2,73,551 - Mere filing of bills of the contractor did not amount to such disclosure by virtue of the aforesaid Explanation 1 to section 147 - The gist of the reasons for issuing this show cause notice was that sale consideration attributable to upper ground floor would give rise to only short-term capital gains which has been assessed by the Assessing Officer in his order under section 147 read with section 143(3) dated 14-2-2005 as long term capital gains - If the subject matter of revision under section 263 was not considered in the reassessment order or was not the subject matter of reassessment then limitation available to the ld. CIT for taking action under section 263 cannot be counted from that order of re-assessment but it will go back to original assessment where the subject matter was not at all considered whether assessment as short-term capital gains or long term capital gains - it is clear that construction of the building was made during financial year 1996-97 and sale was also made during that financial year - These facts are steering at the face of the Assessing Officer and if they escape his notice or he ignores them then certainly the order of Assessing Officer becomes erroneous and prejudicial to the interest of revenue - it is settled law if a duty cast on the Assessing Officer either to enquire or to assess a particular item of income, and if he fails to carry out his duty then his order would be erroneous and prejudicial to the interest of revenue - Decided against the assessee
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