TMI Blog2016 (3) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of transfer of the original asset expires. In the present case on hand, on perusal of the facts, it is clear that the assessee has purchased another residential site within a period of 3 years and the balance amount was also invested under capital gain deposit account scheme. If there is inadequate enquiry, that would not by itself give occasion to the CIT to assume jurisdiction u/s 263 of the Act, merely because he has a different opinion on the issue. The CIT can do this, when there is a lack of enquiry by the assessing officer. In the present case on hand, there is no reason of whatsoever for the Commissioner to revise assessment order, as on both counts i.e. the order is not erroneous as the A.O. has verified the issues and allowed the claim made by the assessee u/s 54F of the Act. The order is also not prejudicial to the interest of the revenue, as the issue of exemption u/s 54F of the Act claimed by the assessee was in accordance with law. Therefore, we are of the opinion that the CIT without any justification assumed the jurisdiction to revise the assessment order which is not permissible under the law. - Decided in favour of assessee - I.T.A.No.268/Vizag/2014 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has allowed exemption u/s 54F of the Act for reinvestment in purchase/construction of residential house property which is otherwise not allowable to the assessee. With these observations, the CIT was of the opinion that the order u/s 143(3) of the Act passed by the A.O., is erroneous in so far as it is prejudicial to the interest of the revenue, on these counts. Therefore, issued a show cause notice and asked as to why the order should not be revised u/s 263 of the Act. 4. In response to show cause notice, the assessee has filed written submissions vide her letter dated 19.12.2015 and contended that the order passed by the A.O. is not erroneous in so far as it is prejudicial to the interest of the revenue, as the A.O. has verified all the issues at the time of assessment proceedings. The assessee further submitted that the A.O. has issued a show cause notice and asked details about all the bank accounts operated by the assessee and chose to verify the bank accounts at the time of assessment proceedings. 5. As far as the issue of exemption u/s 54F of the Act is concerned, the assessee submitted that during the relevant financial year, she has sold a property and re invested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the details of reinvestment made in purchase of residential site and also the amount deposited under capital gain deposit scheme. The A.R. further submitted that the assessee has sold a property and reinvested the sale consideration in purchase of another residential site for construction of residential house. Since, she could not utilized the full sale consideration before the due date of filing of return u/s 139(1) of the Act, she has deposited the unutilized sale consideration under capital gain deposit scheme and furnished the proof of such deposit along with return of income. However, she could not complete the construction of the residential house within the time allowed under the Act, therefore, offered the entire capital gain for taxation for the assessment year 2012-13. The A.R. further submitted that this fact clearly indicates that there is no loss of revenue, to brand the assessment order as prejudicial to the interest of revenue. Therefore, for the same reasons, the CIT was not correct in directing the A.O. to redo the assessment. On the other hand, the Ld. D.R. strongly supported the order of CIT. 9. We have heard both the parties, perused the materials availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount deposited under this sub-section is not utilized wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,-- (i) the amount by which- a. the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds b. the amount that would not have been so charged had the amount actually utilized by the assessee for the purchase or construction of the new asset within the period specified in subsection (1) been the cost of the new asset, shall be charged under section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw the unutilized amount in accordance with the scheme aforesaid. 12. On careful consideration of the provisions of section 54F of the Act, it is abundantly clear that sub section 4 of section 54F of the Act, provides for, where the assessee has not utilized the full value of consideration f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is erroneous in so far as it is prejudicial to the interest of the revenue. The assessment order is not prejudicial to the interest of the revenue as there is no loss of revenue because, the A.O. has accepted the claim of assessee which is in accordance with law. We further observed that the A.O. has examined the issue at the time of assessment and chose to allow the claim of the assessee. Once, the A.O. has allowed the claim after being satisfied with the explanation of the assessee, then the, CIT cannot revise the assessment order for the same reason with a different opinion. As far as the other issues which leads to revision u/s 263 of the Act is concerned, the A.O. has passed consequential order as per the directions of the CIT u/s 263 of the Act and has accepted the issues which leads to the revision. From this, it is clear that there is no reason of whatsoever for the CIT to revise the assessment order. 15. The CIT, u/s 263 of the Act has power to revise the assessment order. But, to invoke the provisions of section 263 of the Act, the twin conditions must be satisfied. (1) The order of the assessing officer is erroneous (2) in so far as it is prejudicial to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Limited (2011) 332 ITR 167, held that once the A.O. examined the issues, the CIT cannot assume jurisdiction on the same issues which is already considered by the A.O., by stating that the A.O. has conducted inadequate enquiry or there is a lack of enquiry. The relevant portion is reproduced as under: 10. To invoke the provisions of section 263 of the Act, the twin conditions must be satisfied i.e. the order of the assessing officer is erroneous and further it must be prejudicial to the interest of the revenue. Unless both conditions are satisfied, the CIT cannot assume jurisdiction to pass order u/s 263 of the Act. It is not necessary that every order which is prejudicial to the interest of revenue is also erroneous. Unless the A.O s order is not erroneous, no action can be taken by the CIT u/s 263 of the Act, this is because the twin conditions i.e. (1) the order is erroneous and (2) the same is also prejudicial to the interest of the revenue are not coexists. In the present case, the A.O. has conducted enquiry before allowing deduction towards wages and centering expenses and also examined the points on which the CIT wants further verification. The assessing officer after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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