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2015 (10) TMI 2168

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..... d. (1989 (7) TMI 64 - DELHI High Court), which we have extensively reproduced earlier, clearly supports the assessee’s plea. However, u/s 263 the ld. Commissioner cannot revise a non est order in the eye of law. Since the assessment order was passed in pursuance to the notice u/s 143(2), which was beyond time, therefore, the assessment order passed in pursuance to the barred notice had no legs to stand as the same was non est in the eyes of law. - Decided in favour of assessee. - Decided in favour of assessee. - ITA no. 4562/Del/2011 - - - Dated:- 24-9-2015 - SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE : JUDICIAL MEMBER For The Appellant : Shri N.K. Jain Adv. For The Respondent : Ms. Sulekha Verma CIT (DR) ORDER PER S.V. MEHROTRA, A.M: This appeal has been preferred by the assessee against the order dated 10-08-2011 passed by the Commissioner of Income-tax, Hisar u/s 263 of the Income-tax Act, 1961, relating to asstt. Year 2007-08. 2. Brief facts of the case are that the ld. Commissioner called for the assessment record and on examination of the assessment order passed by the AO u/s 143(3), observed that the said order was erron .....

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..... roneous in so far as it is prejudicial to the interest of revenue is against law facts for the alleged reason that :- (i) The sale of plot out of the land in which money was invested to acquired held as a capital assets as a Trading activity and directing to assess the income there from as business income in view of judgment of P H High Court passed on different facts by ignoring later judgments of the same high court and of other courts. (ii) To verify the short term capital loss of ₹ 35002/- duly proved on sale of shops. (iii) To verify the receipt of interest of ₹ 6188 and credited directly to capital account received on maturity of NSC ignoring that it was already shown as income on accrual basis by considering it as income from MIC Intt. against facts. (iv) To verify the detail of expenses incurred in construction of shops duly verifiable and already verified from the books of accounts and to tax the unexplained investment. (v) In treating source of marriage expense to the extent of ₹ 244000+51000, as unexplained u/s 69 C of I.T. Act to assess the same as income against law. Without properly considering the material on record and the e .....

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..... iefly stated, the facts are that in respect of the assessment year 1973-74, the Income tax Officer made an assessment. An appeal was taken to the Commissioner of Income tax, who allowed the same. Further appeal was filed by the Department to the Tribunal and the same was decided in favour of the Department. The assessee, thereafter, moved an application under section 254(2) of the Income tax Act in which it was contended that at the time of the hearing of the main appeal, the assessee's counsel had submitted that the assessment order itself was barred by time. The submission was that this contention had not been dealt with by the Tribunal. The Tribunal then passed an order under section 254(2) rectifying its earlier order. The Tribunal came to the conclusion that such a contention had been raised by the assessee and it decided that contention in favour of the assessee. The decision of the Tribunal, therefore, was that the assessment was barred by time, but, at the same time, on merits, the Tribunal had decided in favour of the Department. Against the aforesaid order passed under section 254(2) of the Act, the Department filed a reference application under section 256(1), but .....

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..... hat the plea regarding invalidity of the assessment order, on the basis of issuance of notice u/s 143(2), beyond one year, cannot be taken in the proceedings u/s 263 because section 263 is for the benefit of revenue in regard to orders which are prejudicial to interest of revenue and, therefore, assessee cannot take the plea of assessment order being bad in law at this stage. 13. Ld. DR referred to the decision of Hon ble Punjab Haryana High Court in the case of Harbans Singh vs. CIT 132 ITR 77, in which, the decision of Hon ble Supreme Court in the case of Raja J. Rameshwar Rao v. CIT 42 ITR 179 was followed. The proposition laid down in these two decisions is that when a person acquires land with a view to sell it later after developing, he is carrying on an activity resulting in profit and the activity can only be described as a business venture. 14. The third decision, relied upon by ld. CIT(DR) is that of Hon ble Delhi High Court is in the case of Gee Vee Enterprises v. Addl. CIT 99 ITR 375, wherein it was held that a writ petition would not lie if the petitioner had not filed any appeal against the order of Commissioner nor had given any explanation as to why he did n .....

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