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TMI Blog2015 (5) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is erroneous and prejudicial to the interests of the Revenue for the reason that Assessing Officer did not call for any details in respect of indexed cost of acquisition applied by the assessee while computing long term capital gains. 2. Brief facts are that assessee filed return of income on 30.07.2009 admitting income of Rs. 4,21,82,326/-. Assessment was completed under section 143(3) of the Act on 22.10.2011 and accepted the income returned. Subsequently, Commissioner issued notice under section 263 of the Act requiring the assessee to explain as to why the assessment order should not be set aside as there is no proper enquiry by the Assessing Officer in respect of indexed cost of acquisition applied by the assessee while computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the assessee referring to page 1 of the assessment order submits that assessment was taken up for scrutiny for examining sale of property and genuineness of long term capital gains information as appearing in the AIR. This was specifically mentioned in the page 1 of assessment order . Referring to page 2 of the assessment order, counsel for the assessee submits that it is the finding of the Assessing Officer that bank statements and other documents called for including capital gain working has been filed by the assessee. The details of investments and expenditure made by the assessee were also called for and filed by the assessee and after due verification of all these details furnished, the Assessing Officer accepted the working of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel submits that when the assessee furnished all the details called for by the Assessing Officer and if there is inadequate enquiry by the Assessing Officer, though the Commissioner has a different opinion in the matter is not justified in invoking the provisions of section 263 of the Act. Counsel for the assessee places reliance on the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Development Credit Bank Ltd. (323 ITR 206) and submits that when the materials called for by the Assessing Officer were placed before him even though there is lack of proper enquiry, the Commissioner of Income Tax has no jurisdiction under section 263 of the Act to revise the order. Counsel for the assessee also relying on the decision of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported by the assessee. The Commissioner of Income Tax passed order under section 263 of the Act directing the Assessing Officer to call for necessary evidence and details in support of the indexed cost of acquisition of building for factory shed and look into the issues afresh, as according to him, there is no proper enquiry. 6. The Hon'ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Ltd. (supra) held as under:- "The submission of the counsel for the Revenue was that while passing the assessment order the Assessing Officer did not consider the aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order, which apparently does not give any reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO made the inquiries, elicited replies and thereafter- passed the assessment order. The grievance of the CIT was that the AO should have made further inquiries rather than accepting the explanation. Therefore, it cannot be said that it is a case of 'lack of inquiry'.-CIT vs. Gabrial India Ltd. (1993) 114 CTR (Bom) 81 (1993) 203 ITR 108 (Bom) relied on." 7. The Hon'ble Bombay High Court in the case of CIT Vs. Development Bank Ltd. (supra) held as under:- "A reading ,of the order passed by the CIT would show that the principal objection which the revisional authority expressed against the order of the AO was an alleged failure of the AO to examine; firstly whether the capital gain of Rs. 1.26 crores has been earned by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Revenue. The observation of the CIT that the AO had arrived at his. finding without conducting an enquiry was erroneous, since an enquiry was specifically held with reference to which a disclosure of details was called for by the AO and made by the assessee. In these circumstances, the Tribunal was justified In coming to the conclusion that recourse to the powers under s. 263 was not warranted in the facts and circumstances of the case." .: In conclusion, the Hon'ble High court held that since an enquiry was specifically held with reference to which a disclosure of details was called for by the Assessing Officer and made by the assessee, the observation of the Commissioner of Income Tax that Assessing Officer had arrived at his find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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