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2018 (2) TMI 1984 - AT - Income TaxRevision u/s 263 - Capital gain computation - HELD THAT:- While passing the assessment order AO recalculated the capital, against the capital gain computed by assessee in its working furnished before the AO, arisen from the development right sold by assessee - assessee filed appeal before the CIT(A). Thus, certainly the recalculation of LTCG was made by AO after raising sufficient queries during the assessment proceeding. AO made the addition of more than ₹ 90 Lakhs in the assessment order. The assessee filed appeal before the ld. CIT(A). When the order was revised the appeal on the same issue was pending before ld CIT(A). CIT issued show-cause notice for revision of assessment order passed under section 143(3) during the pendency of the appeal. The show cause notice was issued in respect of the same issue pending before the ld. CIT(A). Clause-(c) of Explanation 1 attached with section 263 prescribe that where any order passed by AO is subject matter of appeal, PCIT or CIT is precluded to consider those issues , though he may consider the other issues which 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.
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