Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2022 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (5) TMI 1029 - AT - Income TaxRevision u/s 263 by CIT - PCIT raised a point in the show cause notice to treat the profit on sale of land as income from business in the place of Capital Gains and the only difference in place of giving directions to the AO to make assessment in a particular manner held that proper enquiries were not made and the issue was decided without application of mind by the AO - HELD THAT:- We are not agreeable to the arguments advanced by the Ld. CIT-DR, for the reason, that the A.O in the present case did not deviate from law and admittedly made certain assessment in accordance with law. PCIT under revision held the same as erroneous, as in his opinion, the A.O. did not apply his mind elaborately. We note that the A.O examined the claim of assessee with supporting evidences along with necessary submissions and determined the assessment and chargeable to tax under LTCG. If at all, if the PCIT not satisfied with the said determination of assessment is lower side, would have applied higher rate by the A.O. of another head of income in our opinion, is untenable, again, for another reasons as it constitutes substitution of opinion which cannot be held as erroneous. Thus, when the assessment made by the A.O. is in accordance with law, it cannot be termed as erroneous and when it is not erroneous it cannot be prejudicial to the interest of revenue. Therefore, the decision of Hon’ble Supreme Court in the case of Amitabh Bachan supra, is not applicable to the facts on hand. We find in the present case, the PCIT issued a show cause notice for non examination of LTCG, without determining the same, directing the A.O. to conduct de novo assessment i.e. re-examination, is not sustainable under law, therefore, in light of the discussion made by us herein above with the support of decisions relied on and in the facts and circumstances of the case, we hold, the PCIT in treating the assessment erroneous and prejudicial to the interest of revenue is not justified under revision proceedings u/s. 263 of the Act and it is set aside. Decided in favour of assessee.
|