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Mr. Paresh Vakharia, M/s. PHD & Associates Versus Income tax Officer-16 (3) (2) , Mumbai

2016 (7) TMI 511 - ITAT MUMBAI

Revision u/s 263 - loss from house property which was set off from income of business and profession need to disallowed as there was no scope for taking possession of the flat in the financial year 2011-12 and claiming the loss in-house property - Held that:- We find that the assessee had purchased a residential unit, vide agreement dated 08/09/2011, for ₹ 1. 06 corrodes, that he had taken a loan of ₹ 90. 54 lakhs from a bank, that he had submitted the copies of agreement for purchas .....

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- We find that the AO had made proper enquiries about the house property income and the loss claimed by the assessee during the assessment proceedings. After considering the available material the AO had arrived at a definite conclusion. In our opinion, the assessment passed by the AO with regard to house property income and loss claimed by the assessee cannot be termed as erroneous or prejudicial to interest of revenue. Revision order dismissed - Decided in favour of assessee - I. T. A. 326 .....

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sessment u/s. 143 (3) of the Act, on 03/02/2015, determining the income of the assessee at ₹ 7, 61, 790/-. 2. On examination of record, the CIT found that the assessee had claimed loss from house property, amounting to ₹ 3, 00, 990/- which was set off from income of business and profession, that the possession of the flat was to be given to the assessee by the developer on 31/12/2012, that there was no scope for taking possession of the flat in the financial year 2011-12 and claiming .....

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t possession of the flat was taken by him. After considering the submission of the assessee, the CIT held that the letter of the builder did not indicate the posssession could be taken by the assessee, that the second paragraph of the letter clearly indicated that the occupancy certificate for the flat was not issued by the CIDCO, that the electricity bill showed nil consumption, that the actual position of the flat was not given to the assessee, that he was not eligible to claim the loss in res .....

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ial to the interest of revenue, that the CIT issued the show cause notice without taking into consideration the relevant document on record i. e. the letter dated 27/03/2012 issued by the builder giving the physical possession of the flat, that the CIT did not make any independent verification or examined the record, that the revision order was based on new facts/grounds, that the facts/ground mention in the show cause notice were not the basis for the revisionary order, that the CIT had directe .....

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632), Sunbeam Auto Ltd. (332 ITR 167). The Departmental Representative (DR) supported the order of the CIT and argued that the AO had not made necessary enquiry. 4. We have heard the rival submissions and perused the material before us. We find that the assessee had purchased a residential unit, vide agreement dated 08/09/2011, for ₹ 1. 06 corrodes, that he had taken a loan of ₹ 90. 54 lakhs from a bank, that he had submitted the copies of agreement for purchase of the flat along wit .....

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made proper enquiries about the house property income and the loss claimed by the assessee during the assessment proceedings. After considering the available material the AO had arrived at a definite conclusion. In our opinion, the assessment passed by the AO with regard to house property income and loss claimed by the assessee cannot be termed as erroneous or prejudicial to interest of revenue . It cannot be held that the view taken by the AO was against the provisions of the law or he has not .....

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d furnished the agreement of purchase of flat to the AO and the letter of the assessee issued by the builder. From the letter it was clear that the possession of the flat was handed over to the assessee before the year-end i. e. on 27 March of the year under appeal. The letter talks of handing over of the keys of the flat. Considering the peculiar effect and circumstances of the case under consideration, we are of the opinion that the order passed by the CIT u/s. 263 of the Act was against the m .....

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d of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous ; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue-recourse cannot be had to section 263(1) of the Act. The provision cannot be invoked to correct each and every type of mistake or error committed by the Assessi .....

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