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2017 (10) TMI 1098 - AT - Income TaxRevision u/s 263 - assessment order framed by the AO u/s. 143(3) is erroneous and prejudicial to the interest of the Revenue for not referring the property to the DVO u/s. 50C(2) and also failed to initiate penalty proceedings u/s. 271(1)(c) of the Act against the assessee for furnishing inaccurate particulars of income - Held that:- CIT cannot be agitated by the assessment order, wherein no reference was made to the DVO u/s. 50C(2) of the Act because the Assessing Officer has adopted the value/sale consideration of the sale of gala at Bhiwandi as determined by the Stamp Duty Valuation Authorities at ₹ 32,27,381/-. The CIT cannot ask for revision in the price for the reason that in any eventuality the AO has to adopt either Stamp Duty Valuation or the value estimated by the DVO u/s 50C(2) of the Act, which is lower price. It means that the assessment order is neither prejudicial or nor erroneous. Secondly, whether the CIT u/s. 263 of the Act can direct the Assessing Officer to initiate penalty proceedings u/s. 271(1)(c) of the Act, this issue is clearly covered by the decisions of Hon’ble Gujarat High Court in the case of CIT vs. Parmanand M Patel (2005 (7) TMI 72 - GUJARAT High Court) and Sterling Construction and Investments vs. ACIT(Inv) (2015 (4) TMI 838 - BOMBAY HIGH COURT) as held the inherent indication under section 271(1) of the Act makes it clear that the Commissioner does not have any powers to direct either of the authorities, the Assessing Officer or the appellate authority, to initiate and levy penalty. The section requires the Assessing Officer or the appellate authority to be satisfied in the course of ‘any proceedings’. This means, any proceedings before either of the specified authorities. The Commissioner cannot create proceedings. If he is not permitted to direct the appellate authority (and this is an accepted position) he cannot be permitted to substitute jurisdiction/powers of only the Assessing Officer by his satisfaction by creating proceedings where none exist-assessment having already been completed. - Decided in favour of assessee.
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