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2017 (5) TMI 1273 - AT - Income TaxRevision u/s 263 - taxability of capital gain - whether provisions of sec. 2(47)(v) would be applicable to the impugned transaction of development of a land held as stock in trade - Held that:- Ld Principal CIT has failed to show that the tax which was lawfully exigible has not been imposed, since we are of the view that there is merit in the contention of the assessee that the provisions of sec. 2(47)(v) will not apply to an asset held as “Stock in trade”, since the said provision very clearly states that it would apply only to “Capital assets”, i.e., the asset should have been held as Capital asset. Further it is the submission of the assessee that the possession of the asset has not been given to the developer, which is the main condition for applying the provisions of sec. 2(47)(v) of the Act. We notice that the Ld Principal CIT has failed disprove the said claim of the assessee. Hence, in our view, the AO has taken a possible view in this matter and further the Ld Principal CIT has failed to show that the tax which was lawfully exigible has not been imposed. Ld Principal CIT has assumed jurisdiction u/s 263 of the Act on this issue without properly complying with the mandate of the section, i.e., he has failed to show that the assessment order was erroneous on this issue causing prejudice to the revenue. Accordingly we set aside the order passed by Ld Principal CIT on this issue. - Decided in favour of assessee Weighted deduction u/s 35(1)(ii) - Held that:- The assessing officer has failed to examine the same at all. Further the Ld Principal CIT has also observed that the weighted deduction is allowed upon compliance of certain conditions, which require examination. Ld Principal CIT was justified in invoking revision provisions on this issue.- Decided against assessee
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