TMI Blog2014 (5) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... er enquiry should have been made or proper exercise was not done while making the assessment – there is no finding by the CIT that there is any loss of revenue and the impugned receipt was subject to tax in A.Y. 2004-05 - the order passed by the AO cannot be termed as erroneous or prejudicial to the interests of revenue so as to assume jurisdiction by the CIT u/s. 263 of the Act - The CIT having not brought on record any error or omission or failure on the part of the AO so as to make the assessment order erroneous or prejudicial to the interests of revenue, the order of the CIT passed u/s. 263 of the Act has no legs to stand – thus, the order of the CIT set aside – Decided in favour of Assessee. - ITA No. 449/Hyd/2013 - - - Dated:- 3-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the total income by holding a view that the CIT(A) has not given due opportunity to the AO. Consequent to the directions of the Tribunal, the AO made a fresh order on 30.12.2010, admitting returned income filed by the assessee as the total income. 4. In this case, the assessee entered into a development cum GPA on 25/05/2000 with Smt. Usha Rani to develop 936 square yards (sqy) of land and to share the constructed area equally between them. Since the work could not be taken up, the builder acquired the entire property in the month of March, 2003 relevant to the AY 2003-04. The assessee received from the builder a sum of Rs. 3 lakhs on 22/06/2000 and Rs. 10 lakhs on 05/03/2003. Subsequently, the sale deed was registered on 03/05/2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such amount again in the current assessment year. 6. On proceedings u/s. 263, the CIT observed that the AO failed to understand the source of the total income returned by the assessee for the AY 2003-04. The total income of Rs. 4,24,130 is nothing but long term capital gain determined by the assessee on a total consideration of Rs. 63,42,000. There is a total lack of application of mind and appreciation of facts by the AO while re-computing the total income as per the directions of the Tribunal. It is his duty to ascertain full facts and after examination of the same vis-a-vis appropriate with the law to frame the assessment and to determine the total income. It is very clear from the facts as well as from the perusal of the sale deed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. For the purpose of computation of stamp duty both seller and buyer declared sale consideration at Rs. 40,42,000/- and for the purpose of computation of capital gains, the sale value is being shown at Rs. 62,42,000/-. Transfer of properties is recognized by way of registered sale deed. Full value of consideration for transfer of property is to be taken into account on the basis of value declared in the sale deed or the value as per the stamp registration authority. The assessee cannot contend that other amounts received from the builder as part of the consideration towards transfer of property. Mere entry in the books of the assessee as well as the builder does not substantiate the claim that total consideration on this sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry is held as erroneous and prejudicial to the interests of the revenue and the Commissioner is empowered to revise such assessment by invoking provisions of Section 263. He relied on the following decisions in support of such proposition which are as under: (1) Rampyari Devi Sarogi vs CIT, 67 ITR 84 (SC) (2) Malabar Industrial Co. Ltd vs CIT, 243 ITR 83 (SC) (3) Swarup Vegetable Products Industries Ltd vs CIT, 187 ITR 412 (All) (4) Gee Vee Enterprises vs Addl. CIT Ors 99 ITR 375 (Del) (5) Rajalakshmi Mills Ltd vs ITO, 121 ITD 343 (SB) (Chennai) SRM Systems Software Pvt. Ltd vs ACIT, 2010-TIOL-646- HC-MAD-IT. 9. The CIT held in view of the above decision that it is very clear that the assessment framed by the AO u/s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that there is no necessity of addition relating to the issue raised by the CIT. 11. As there was enquiry by the AO, even assuming that it is inadequate, that would not give an occasion to exercise jurisdiction by the CIT u/s. 263 of the Act. Assessment order cannot be revised on the ground that a deeper enquiry should have been made or proper exercise was not done while making the assessment. More so, in the present case, there is no finding by the CIT that there is any loss of revenue and the impugned receipt was subject to tax in A.Y. 2004-05. The AO after taking into account submissions by the assessee as well as the evidence, he came to the conclusion that no addition is warranted in A.Y. 2003-04. Therefore, it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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