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TMI Blog2014 (12) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... 961 to set aside the assessment order dated 15 December 2008, as in the opinion of the Commissioner the same is erroneous and in so far as it is prejudicial to the interest of the Revenue. 2. The Tribunal, Mumbai Bench, found that the Commissioner's power under section 263 could not have been exercised in the given facts and circumstances. The exercise of powers was based merely on change of opinion. If the Commissioner held the particular opinion, but on the same transaction and same dealing, then that was not enough to enable him to exercise this power, is the conclusion reached. 3. Mr.Chhotaray, learned Counsel appearing on behalf of the Revenue, would submit that this conclusion of the Tribunal is vitiated by error of law apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer that the first agreement dated 14 March 2001 is mere an agreement for sale. This means neither the property was handed over nor the transaction was registered. It contains number of dates regarding payment made or to be received, talks of possession by 31 December 2002. Then there is a Rectification Agreement dated 9 October 2002 and styled as Deed of Rectification, which not only changes number of flats under the Agreement but also enhances the area. The additional consideration of Rs. 32,87,000/- was also stated to be paid. Therefore, this is not extension of the earlier agreement but a fresh agreement. In any event, this does not talk of possession with the Assessee. There there is another date for registration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration. However, when the agreement for sale with the Rectification Deed together were taken as a document conveying immoveable property that the stamp authority or authorities under the Bombay Stamp Act, 1958 levy assess and recover stamp duty. The registration of the agreement is also, therefore, on the footing that it is a conveyance. In such circumstances, it is not clear as to why the Commissioner held another opinion. Apart therefrom only his view and opinion will not enable him to exercise the power u/s 263 of the I.T.Act, that is not found to be permissible in law by the Tribunal. Secondly, we find very strange mode of exercise of power by the Commissioner. In six paragraphs, he faults the Assessing Officer for not holding any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completely misplaced. There the Court upheld the order of the Tribunal, because the residential house purchased by the Assessee could not have been said to be acquired and when the full consideration was not paid. The relevant date taken by the Court and namely payment of the consideration on 29 July 1988 and the subsequent date, that is immediately on the next day, the Assessee was put in possession, which enables it to uphold the conclusion of the Tribunal. It is, therefore, the Court dismissed the Revenue's Application. It is not laying down any principle of law. It is essentially on the facts and taken cumulatively that the Revenue's Appeal/Application was dismissed. In such circumstances, we do not find that this judgment c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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