TMI Blog2012 (8) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was a lack of enquiry by the authority under the Act. It can also not be held that the enquiry was inadequate because complete details were provided to the AO, therefore, we have to hold that this was a clear case of change of opinion, that too, on a proposal sent by the AO, meaning whereby it was not the case of suo moto action of the CIT, which means, that the CIT himself did not apply his mind. Hence, action to invoke revision proceedings u/s 263 is bad in law and cannot be sustained. Second part of revision proceedings with regard to excess allowance of deduction u/s 80C - rectification proceedings already initiated by AO - Held that:- Since, this was an erroneous view taken by the AO, which, in any case is unsustainable in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understatement to the extent of Rs. 11,89,558 on account of capital gains and (b) excess deduction under section 80C of the Act. 4. The AR, then perused the issue of capital gains, wherein, he submitted that the assessee purchased three flats vide agreement dated 14-03-2001 from R. S. Estate Developers Pvt. Ltd. in the building called Oberoi Sky Gardens at Andheri (W), Mumbai. As the building was under construction, the assessee paid Rs. 10,00,000/- and Rs. 7,20,000/- on 28-07-2000 and 20-10-2000 and made the full and final payment on 13-02-2001, against which, the developer and the assessee signed the agreement of sale. On 09-10-2002 the assessee asked the rectification to be made in the agreement dated 14-03-2001, which was duly entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DDA and other similar schemes, wherein it was held, The Board have been advised that under the above circumstances, that can be drawn is that the D.D.A. takes up the construction on behalf of the allottee and that the transaction involved is not Under the scheme, the tentative cost of construction is already determined and the D.D.A. facilitates the payment of the cost of construction in instalments subject to the condition that the allottee has to bear the increase, if any, in the cost of construction. Therefore, for the purpose pose of capital gains tax, the cost of the new asset is the tentative co construction and the fact that the amount was allowed to be paid in instalments does not affect the legal position stated above. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his decision in the assessment order. Therefore, the issue before us is, whether still, the assessment order is erroneous and prejudicial to the revenue. From the facts as narrated by the AR, we are of the considered opinion that the issue has been dealt with and an opinion had been formed over that by the AO. It is therefore, a clear case of change of opinion, because even the DR could not get out of the fact that the entire material and evidence was not before the AO and we also cannot come to a diverse view regarding the disclosure of evidence. Therefore, we have to hold that this was a clear case of change of opinion. We also get support from the various decisions of the Hon'ble jurisdictional High Court of Bombay in the case of Gras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings the AO had already made the enquiry, as he thought fit. In these circumstances, it can never be held that there was a lack of enquiry by the authority under the Act. It can also not be held that the enquiry was inadequate because complete details were provided to the AO, therefore, we have to hold that this was a clear case of change of opinion, that too, on a proposal sent by the AO, meaning whereby it was not the case of suo moto action of the CIT. This is important to note because the words used in section 263 are, he may . In the instant case, the impugned order itself specifies that the proposal was received from the AO, which means, that the CIT himself did not apply his mind. Both these propositions were dealt with by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, it was informed to the CIT that the AO had already initiated rectification proceedings on the issue. Vide letter to the AO, dated 10/01/2011, the assessee has conveyed her no objection to rectify the order to that extent. In that circumstance, recourse to revision proceedings is unwarranted. 13. We have heard the submission of the AR and have also perused the record. We are unable to subscribe to this argument because this was an erroneous view taken by the AO, which, in any case is unsustainable in law. We, therefore, uphold the revision proceedings initiated by the CIT on the issue of excess allowance of deduction under section 80C. In the result : We hold that initiation of proceedings under section 263 on the issue of LTCG i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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