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2021 (12) TMI 438 - AT - Income TaxRevision u/s 263 by CIT - Reopening of assessment u/s 147 - LTCG u/s 45(1) - As per CIT during the assessment proceeding the AO did not examine all the material facts of the case particularly regarding liability of the assessee for paying long term capital gain as per Sec. 45(1) of the Act in entering into a Joint Venture Agreement - HELD THAT:- Considering the entire aspect of the matter the Ld. AO in the reopening proceeding under Section 143(3) r.w.s. 147 concluded the proceeding on the premise that the long term capital gain does not arise in the year under consideration i.e. when the agreement was executed but it arose later on when the assessee took possession of two flats against Joint Venture Agreement and sold the same to the third party in A.Y. 2015-16. This particular fact was ascertained from the return of income filed by the assessee for A.Y. 2015-16. Therefore, when the issue has already been decided by the Ld. AO in the previous occasion upon making enquiry and/or verification of the relevant documents in support of the submissions made by the assessee as regards the benefit of long term capital gain the same cannot be reopened under the Explanation 2 of Section 263 declaring the order passed by the Ld. AO erroneous and prejudicial to the interest of the Revenue on the plea of no enquiry and/or verification done by the AO We are fortified by the order passed by the Hon’ble High Court at Calcutta in the case of PCIT vs. Infinity Infotech Parks Ltd. [2018 (9) TMI 111 - CALCUTTA HIGH COURT] on this issue that has already discussed hereinabove which further approves the order passed by the Ld. AO on the count that there can be no tax payable unless there is any profit or gain has arisen. Hence, we do not support the order passed by the Ld. PCIT under Section 263 of the Act for reopening of assessment for the reason already discussed hereinabove and, thus, the same is hereby quashed. Appeal filed by the assessee is allowed.
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