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2015 (1) TMI 563 - AT - Income TaxRevision u/s 263 - Erroneous assessment - income of the assessee from the letting out of godown - agricultural incom or not - whether was an income assessable as income from house property? - Held that:- it is seen that the assessee has taken two mutually divergent stands. Before the ld. CIT, it stated that it stood covered under Explanation 2 to Section 2 (1A). On the other hand, before us, it states that Explanation 2 cannot be invoked, since it (the assessee) passes the test of Section 2 (1A) (b) (ii) and (iii). Applicability or otherwise of Explanation 2 to Section 2 (1A), it is seen that this Explanation is with regard to income derived from any building referred to in Section 2 (1A) (c). ‘Building’ as referred to in Section 2 (1A) (c) is any building owned or occupied by the receiver of the rent or revenue of any land situated in India and used for agricultural purposes, or occupied by the cultivator or the receiver of rent-in-kind, of any land with respect to which, or the produce of which, any process mentioned in Sections 2 (1A) (b) (ii) and (iii) is carried on. This definition of ‘building’ as seen above, does not get attracted to the present case. Thus, since the godown building in question does not come within the definition of ‘building’ as contained in Section 2 (1A) (c), the income therefrom cannot be held to be agricultural income with the help of Explanation 2 to Section 2 (1A). As it is seen that the explanation offered by the assessee before the Assessing Officer was accepted by the Assessing Officer without dealing with as to how such explanation was acceptable as assessment order states only that as it was noticed that the income derived by the assessee was letting out of godowns, it was required to explain as to why its income should not be assessed as income from ‘House Property.’ The assessee has filed a detailed written reply in this behalf wherein the assessee has relied upon the provisions of section 2 (1A) (c) of the Income-tax Act, 1961. Having considered assessee’s reply, the assessee’s claim of agricultural income is accepted. Thus, the assessment order is a non-speaking order. The CIT’s Order, per contra, is a detailed order, evincing how the view that the income of the assessee from the letting out of godown was an income assessable as income from house property taken by him is a view which is in accordance with law, as against the Assessing Officer’s view, which is not a possible view in law, much less a plausible one. Therefore, the grievance of the assessee in this regard is rejected and the action of the ld. CIT in holding the assessment order to be an erroneous order prejudicial to the interests of the revenue is confirmed. Decided against assessee. Issue of assessability of income under a particular head prescribed by the IT Act is an issue basically concerned with assessment. The Ld. CIT, after finding the order passed by the Assessing Officer to be erroneous and prejudicial to the interests of the revenue, ought to have set aside the matter to the Assessing Officer to decide the head of income. Such a course would have met the requirement of law. Since this has not been done, we remit the alternative contentions of the assessee to the file of the Assessing Officer for decision.
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