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2016 (2) TMI 920 - ITAT AHMEDABAD

2016 (2) TMI 920 - ITAT AHMEDABAD - TMI - Revision u/s 263 - Held that:- The assessee furnished breakup of investment and copy of fresh computation. We also find that the copies of breakup furnished during the course of the assessment proceedings are exhibited at Page Nos. 70 & 71 of the paper book. The details of payment of brokerage commission and interest are exhibited at Page Nos. 72 & 73 of the paper book. The computation of short term capital gain is exhibited at Page No. 75 of the paper b .....

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taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the Revenue but the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that " every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the Revenue," for e.g. when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenu .....

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DER Per N K Billaiya 1. With this appeal, the assessee has challenged the validity of the order of the ld. CIT-II, Ahmedabad dated 27.10.2014 pertaining to A.Y. 2010-2011. 2. The assessee has challenged the jurisdiction of the Commissioner stating that the Commissioner has grossly erred in invoking the powers conferred upon him by virtue of section 263 of the Act as the assessment order is neither erroneous nor pre-judicial to the interest of the revenue. 3. In this case, the assessment order wa .....

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,37,493/- and accepted the capital gain of ₹ 3,16,843/-, without making any inquiry to verify the allowability of the claim of assessee. According to the Commissioner, the assessee s claim on account of capital gains has been accepted without proper enquiry resulting into underassessment of capital gains. The ld. CIT(A) concluded in his show cause notice by observing that the order dated 18.07.2012 passed by the ITO Ward-4(3), Ahmedabad is erroneous in so far as it is pre-judicial to the i .....

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It is the say of the ld.counsel that the Commissioner has grossly erred in holding that the A.O has not made any inquiry in respect of the sale transaction of the plot is concerned. The ld. counsel continued by stating that the capital gains have been thoroughly examined by the A.O and thereafter it was accepted. The ld. counsel concluded by saying that since the A.O has made thorough investigation therefore, it cannot be said that the assessment order made u/s. 143(3) of the Act is erroneous in .....

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umed the power u/s. 263 of the Act. The Hon ble Supreme Court in Malabar Industrial Co. Ltd. 243 ITR 83 has laid down the following ratio:- "A bare reading of section. 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under ii, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, .....

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n order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous" 6. Now, let us see in the light of the above ratio, whether the assessment has been made on an incorrect assumption of facts or an incorrect application of law. 7. Now, let us see the questionnaire served by the Assessing Officer during the course of assessment proceedings vide notice u/s. 142(1) of the Act wh .....

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6. Copy of purchase and sale deed of plot no. 113/2/2 is enclosed here with. 7. Working of capital gain is as per return of income. 8. As regard investment of ₹ 14945664/- it is stated that it is a amount of last year investment there was no new investment made during the year and no amount shown as a investment as on 31.03.2010 balance sheet. 10. Thus, it can be seen that specific queries were replied specifically. 11. Again on 09.07.2012, the assessee furnished breakup of investment and .....

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hich have been examined by the A.O before completing the assessment. 12. A perusal of the afore-stated documentary evidences qua the observations of the Commissioner show that there is no failure on the part of the A.O to examine the impugned transactions and, therefore, in our considered opinion, there is no error in the assessment order which can be said to be pre-judicial to the interest of revenue. 13. The AO has taken a view which may be different from the view of the Ld. Commissioner and a .....

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