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2022 (10) TMI 1120 - HC - Income TaxRevision u/s 263 by CIT - assessee had purchased the property in question with an intention to build Tech Park, but due to recession, the building was not constructed and as the firm had no funds, assessee sold the land - HELD THAT:- A careful analysis of the facts of the case indicate that although the property was purchased with an intention to construct a Tech Park, the same was sold for want of funds. No development whatsoever was made by the assessee. There is no expenditure incurred for anything other than for interest, professional charges and brokerage. This aspect has been considered by the Assessing Officer and he has taken a view that assessee was liable to pay the Capital gains. In the order u/s 263 Commissioner has recorded that the AO has wrongly treated the land as 'Capital asset'. As further recorded in assessee's transaction was a solitary transaction and no construction of building nor any development activity was made. This factual finding that the transaction was a solitary transaction and no development activity was made, is in consonance with the facts recorded by the AO. The only difference is, AO has taken a view that for any purchase or sale of a land, assessee is liable to pay the capital gains tax and the Commissioner has taken a different view. In view of the authority in Malabar Industrial Company Limited. [2000 (2) TMI 10 - SUPREME COURT] merely because two plausible views are available and the AO has taken one view, the jurisdiction u/s 263 cannot be exercised. Invoking Section 263 in the facts and circumstances of the case was erroneous. Consequently, the first question as to whether the Tribunal was right in holding that there was no infirmity in the order of revision, requires interference and the said finding needs to be set-aside. Whether the Tribunal was right in holding that no enquiry was made by the AO during the original assessment proceedings? - In view of the admitted facts that the land was purchased and sold without any development, no elaborate enquiry was required and the AO has noted the facts required for the case and passed the AO. Decided in favor of assessee.
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