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2013 (10) TMI 227 - HC - Income TaxRevision u/s 263 - an order erroneous and prejudicial to the interest of the Revenue – power of CIT to revise - The order under Section 263 in the first paragraph refers to profit on sale of shares, which was treated as short-term capital gain or long- term capital gain. Notice was issued why profit from sales of shares should not be treated as business profit. - Held that:- The Commissioner has accepted that this is not a case of no inquiry or investigation but it could be a case of an erroneous decision. - In Malabar Industrial Co. Ltd. Vs. CIT, [2000 (2) TMI 10 - SUPREME Court], it has been observed that where two views are possible and the Assessing Officer takes one view or accepts the assessee’s stand, the order is not erroneous, unless the order is not sustainable in law. Thus in such cases, Commissioner is not powerless. After hearing the assessee, he can hold that the finding of the Assessing Officer is erroneous. In rare cases the inadequate inquiry per se can be treated as erroneous, but this must be indicated and stated by the Commissioner in clear and lucid term by pointing out the relevant facts – In the present case, statutory requirement is not met – Decided against the Revenue.
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