TMI Blog2006 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... brevity hereinafter referred to as "the Tribunal") in I. T. A. No. 406/Ind./95. This appeal was admitted for final hearing on the following substantial question of law : "1. Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was justified in ignoring detailed and specific instances mentioned by the Commissioner Income-tax in the order under section 263 regarding the transaction of purchase and sale of plots entered into by the assessee over the years with a motive to earn profit and to which the Assessing Officer failed to apply his mind which made the assessment an order erroneous and prejudicial to the interests of the Revenue ?" 2 Heard Shri R. L. Jain, learned senior counsel with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order of the Commissioner holding, inter alia, that firstly the order of the Assessing Officer was neither erroneous nor prejudicial to the interests of the Revenue and, secondly, mere change of opinion on the same facts already considered by the Assessing Officer does not empower the Commissioner to invoke section 263 ibid for setting aside the order passed by the Assessing Officer in so far as it relates to issue regarding sale of plot in question. It is against this order of the Tribunal; the Revenue has come up in appeal which as stated supra was admitted for final hearing on the aforementioned substantial question of law. 4 At the outset, learned counsel for the assessee (respondent herein) contended that the basis on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o called opinion by the Commissioner for invoking section 263 having disappeared by order of the authorities, in favour of the assessee there is no point in pursuing this appeal by the Revenue which is otherwise liable to be dismissed on the merits on the grounds decided by the Tribunal. Learned counsel for the Revenue did not dispute this position in so far as it related to the case of the co-owner when asked by the Bench. 5 It is clear from a perusal of the Commissioner's order (which has been set aside by the Tribunal by the impugned order) that it was based on the case of the co-owner. Following mention in the order proves this fact : "It is further relevant to note that in the case of the property C-1/45, Neemuch, the other co-o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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