2021 (5) TMI 387 - ITAT INDORE

Revision u/s 263 - examination of issue related to the Capital gain on sale of plot and deduction as claimed by the assessee u/s 54F - HELD THAT:- While completing the proceedings u/s 263 of the Act Ld. Pr. CIT was satisfied with the assessee’s claim of deduction u/s 54F(4) of the Act for the deposit in capital gain account scheme as observed in impugned order, accepting that during current proceedings u/s 263 of the Act assessee had duly furnished copy of the certificate from the concerned bank and sample copy of application for withdrawal all amount from the capital gain account scheme. Since the Ld. Pr. CIT is satisfied this issue does not remains live.

Applying of the guideline value on the sale consideration shown by the assessee - We observe that almost total consideration as per the sale agreement was received by the assessee during the F.Y.2011-12 and 2012-13. The final consideration as mentioned in the sale deed dated 26.03.2014 was received by M/s. Daksha Homes Pvt. Ltd.

Ongoing through various decisions relied on by the Ld. counsel for the assessee, we find that the assessee had rightly shown the sale consideration at ₹ 97,65,000/- and even this aspect has been thoroughly examined by the assessing officer during the course of assessment proceedings of the assessment order - Therefore, so far as, this issue relating to applying of the guideline rate as on 30.03.2012 or 26.03.2014 is concerned, we find that the issue has been thoroughly examined by the assessing officer and has taken one of the plausible view in the light of the settled judicial proceedings which thus leave no room for the Pr. CIT to assume jurisdiction u/s 263.

Deduction u/s 54F(1) for the investment in construction of House - As assessee apart from owning one flat also held another house at AH-28 & 29 which was a joint property owned by appellant with his wife Smt. Sumitra Borad. There was a house on AS-28 and AH-29 was vacate. That initially the entire payment for construction of the original house was made by the appellant duly shown as the investment in the house in the balance sheet. During financial year 2014-15 relevant to A.Y. 2015-16 against the investment of ₹ 41,56,868/- the appellant received ₹ 16,81,609/- from his wife towards her share. The cost of house was reduced to ₹ 24,76,259/-. The said House situated at AH-28 is claimed to be demolished by assessee A.Y.2014-15 and construction of new house started on both plots of land i.e. AH-28 & AH-29 for which necessary permission was taken from Municipal corporation.

As during the course of assessment proceedings a detailed query letter was issued to the assessee to file various details and in reply to which submissions were filed which also included the details for claim of investment in residential house u/s 54F(1)

It is a settled position of law that powers u/s 263 of the Act can be exercised by the Pr. Commissioner/Commissioner on satisfaction of twin conditions, i.e., the assessment order should be erroneous and prejudicial to the interest of the Revenue. By 'erroneous' is meant contrary to law. Thus, this power cannot be exercised unless the Commissioner is able to establish that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. Thus, where there are two possible views and the Assessing Officer has taken one of the possible views, no action to exercise powers of revision can arise, nor can revisional power be exercised for directing a fuller enquiry to find out if the view taken is erroneous. This power of revision can be exercised only where no enquiry, as required under the law, is done. It is not open to enquire in case of inadequate inquiry.

Pr. CIT was not justified in imposing his view upon the assessing officer on wrong appreciation of facts and not considering the fact that issues raised in the show cause notice u/s 263 of the Act were thoroughly examined by Ld. AO and has duly applied his mind taking one of the permissible view under the law. - Decided in favour of assessee.