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2023 (4) TMI 896 - ITAT DELHIRevision u/s 263 - Transfer of land by wife to her husband - Nature of transaction - Sale or Gift - Clubbing of income - CIT-A assailed the assessment order on the ground that LTCG arising on transfer of agriculture land by assessee to her husband is liable to taxation which has been erroneously not done by the AO resulting in prejudice to the interest of revenue - HELD THAT:- Whether the re-assessment order can be regarded as erroneous insofar as prejudicial to the interest of the Revenue has to be tested on the touchstone of the plausibility of explanation given by the assessee before the Assessing Officer. Where the opinion formed by the Assessing Officer towards non taxability of any LTCG on purported sale is found plausible then the act of the Assessing Officer cannot be regarded as erroneous per se and consequently the jurisdiction of ld. Pr.CIT would be automatically ousted. In the reverse, if the opinion formed by the Assessing Officer is wholly incongruent with the scheme of the Act, the Pr.CIT shall be within its right to usurp jurisdiction under Section 263. As undisputed although the property was purchased in the name of the assessee-wife, the purchase consideration were paid by the husband of the assessee at the time of purchase of land in December, 1999. The sale deed was executed to handover the agricultural land back to husband for which no consideration whatsoever was received by the assessee. The only mistake committed was that instead of execution gift deed a sale deed was executed to restore the legal rights of husband. It is the case of the assessee that sale deed is nothing but gift deed intended to transfer the land as vouched by lack of consideration and in view of the intented circumstances. This fact was brought on record by way of oral evidence as well as circumstantial evidence. No negative fact is available on record to dispute the assertions made on behalf of the assessee as well as her husband jointly - AO also invoked Section 64 of the Act for clubbing of income and simultaneously exonerated the assessee from the liability of Long Term Capital Gain on notional consideration in the absence of any real income accrued to the assessee. AO thus accepted the version of the assessee with application of mind. Merely because the Pr.CIT thinks differently on the point on the issue would not entitle him in law to substitute his opinion by the view adopted by the AO in discharge of his quasi judicial functions - Appeal of the assessee is allowed.
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