TMI Blog2018 (1) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shantigram Estate Private Ltd. to transfer such beneficial ownership rights in favour of latter which were acquired by R.Y. Infrastructure Pvt. Ltd. from the assessee by agreement to sell. The assessee had already received the sale consideration of ₹ 28.41 lacs when she entered into agreement to sell with R.Y. Infrastructure Pvt. Ltd. and handed over the quite possession in its favour. All these facts were considered by the A.O. and being satisfied with the transaction qua the relevant provisions of the Act, the assessment order was framed u/s. 143(3) - Assessment order is neither erroneous nor prejudicial to the interest of the revenue. We, therefore, set aside the impugned order passed by the Principal CIT u/s. 263 and restore that of the A.O. passed u/s. 143(3) of the Act. - Decided in favour of assessee. - ITA. No. 1284/AHD/2017 - - - Dated:- 23-1-2018 - 0Shri N. K. Billaiya, Accountant Member And Shri Mahavir Prasad, Judicial Member Appellant by : Shri S.N. Soparkar, P.M. Mehta Urvashi Shodhan, A.R. Respondent by : Shri Surendra Kumar, CIT/D.R. ORDER Per N. K. Billaiya, Accountant Member 1. With this appeal, the assessee has challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer 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 Assessing Officer, it is only when an 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 . 5. In the light of the settled proposition of law mentioned hereinabove, let us now see whether there is any wrong assumption of law or facts made by the A.O. while framing the assessment order dated 26.02.2015 u/s. 143(3) of the Act. 6. An agreement to sell dated 27.03.2007 for lands bearing survey number 220 221 was executed between assessee and R.Y. Infrastructure Pvt. Ltd. in the presence of public notary. The consideration in terms of said agreement for the transfer was fixed at ₹ 28.41 lacs. It was agreed that sale deed ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012-13. Vide notice dated 18.07.2014 issued u/s. 142(1) r.w.s. 129 of the Act following query was raised vide question no. 13. 13. Similarly as per AIR information, you have sold immovable property for ₹ 5,91,87,500/-. Please furnish copy of purchase and sale deed. Also give the working of capital gains on such sales. 12. Vide reply dated 20.12.2014, the relevant query raised by the A.O. was answered as under:- 13. Find attached herewith purchase deed, Copy of Agreement for sale, Possession Agreement, sale deed Copies of Account of Dantali Blk No. 220 221 for F.Y. 06-07 F.Y. 07-08 on basis of Agreement for sale, Possession Agreement I have already shown the Capital Gain in the A.Y. 2008-09, the computation thereof is attached herewith for your ready reference. (Annexure-8). 13. Vide reply dated 29.01.2015, the assessee further furnished the requisite information as under:- Date: 29.01.2015 From: Kavita Vinodbhai Adani PAN: ADRPA6552F Shikhar, 8th Floor, Nr. Mithakhali Circle, Navrangpura, Ahmedabad. To: The Income Tax Officer, Ward- 10(2), Ahmedabad Dear Sir, Sub: Assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action proposed, you are requested to appear before me either personally or through your Authorized Representative on 06.03.2017 at 3:30 PM at my office-situated at the above address, along with a written reply to this notice. (V.K. Pandey) Pr. Commissioner of Income-Tax-5 Ahmedabad 16. A perusal of the show cause notice clearly shows that the Principal CIT has not appreciated the facts of the case in true perspective. As mentioned elsewhere, the agreement to sell was entered on 27.03.2007 and the possession was given on 04.05.2007. Therefore, it is incorrect to say that the capital gains tax liability arose in A.Y. 2012-13 when the same was in A.Y. 2008-09 as per the relevant provisions of the IT Act. Therefore, it cannot be said that the assessment order framed u/s. 143(3) is erroneous and prejudicial to the interest of the revenue. 17. It is incorrect to say that the assessee has received a consideration of ₹ 5.63 crores. The conveyance deed dated 25.07.2011 perused by the Principal CIT was tri-partite deed comprising of seller [assessee], confirming party [R.Y. Infrastructure Pvt. Ltd.] and Shantigram Estate Private Ltd. [assignee of R.Y. Infrastruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of Assessing Officer even though the working of allowability of deduction under section 54F is available in the order under section 263 which is not disputed by the assessee before ITAT. 22. And the Hon'ble High Court, after considering the facts, held as under:- 6. It can thus be seen that though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim of deduction under section 54F of the Act in the context of fulfilling conditions contained therein and may possibly have no relevance to the question whether the sale of land gave rise to a long term capital gain. Looking to the tenor of queries by the Assessing Office and details supplied by the assessee, we are unable to accept such a condition. In that view of the matter, the observation of the Tribunal that the Assessing Officer having made inquiries and when two views are possible, revisional powers could not be exercised, called for no in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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