TMI Blog2015 (9) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... law that by the action of the authorities the limitation cannot be extended, because the provisions of limitation are provided in the statute. - Decided in favour of assessee - ITA no. 4562/Del/2011 - - - Dated:- 29-9-2015 - SHRI S.V. MEHROTRA : ACCOUNTANT MEMBE AND MS. SUCHITRA KAMBLE : JUDICIAL MEMBER For the Appellant : Shri N.K. Jain Adv. For the Respondent : Ms. Sulekha Verma CIT (DR) ORDER PER S.V. MEHROTRA, A.M: This appeal has been preferred by the assessee against the order dated 10-08-2011 passed by the Commissioner of Income-tax, Hisar u/s 263 of the Income-tax Act, 1961, relating to asstt. Year 2007-08. 2. Brief facts of the case are that the ld. Commissioner called for the assessment record and on examination of the assessment order passed by the AO u/s 143(3), observed that the said order was erroneous, in so far as it was prejudicial to the interest of revenue for the following reasons: On perusal, it is noticed that the assessee has started new business and opening capital of ₹ 2251672.32 has been reflected in Capital A/c, the source of which should have been got explained, however, the A.O. neither put any query in this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court passed on different facts by ignoring later judgments of the same high court and of other courts. (ii) To verify the short term capital loss of ₹ 35002/- duly proved on sale of shops. (iii) To verify the receipt of interest of ₹ 6188 and credited directly to capital account received on maturity of NSC ignoring that it was already shown as income on accrual basis by considering it as income from MIC Intt. against facts. (iv) To verify the detail of expenses incurred in construction of shops duly verifiable and already verified from the books of accounts and to tax the unexplained investment. (v) In treating source of marriage expense to the extent of ₹ 244000+51000, as unexplained u/s 69 C of I.T. Act to assess the same as income against law. Without properly considering the material on record and the explanation submitted in the Assessment proceeding and also before the Ld CIT without showing how the order is erroneous prejudicial to the interest of revenue merely because the order of the AO was not in the lines as considered by the Ld CIT. 2. The Ld. CIT has initiated the proceeding without fulfilling the requirement of sect. 263 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under section 254(2) of the Income tax Act in which it was contended that at the time of the hearing of the main appeal, the assessee's counsel had submitted that the assessment order itself was barred by time. The submission was that this contention had not been dealt with by the Tribunal. The Tribunal then passed an order under section 254(2) rectifying its earlier order. The Tribunal came to the conclusion that such a contention had been raised by the assessee and it decided that contention in favour of the assessee. The decision of the Tribunal, therefore, was that the assessment was barred by time, but, at the same time, on merits, the Tribunal had decided in favour of the Department. Against the aforesaid order passed under section 254(2) of the Act, the Department filed a reference application under section 256(1), but the said application was dismissed. The assessee then moved a second miscellaneous application being No. 14 of 1986 in which it prayed that the Tribunal should recall its order passed in the main appeal being ITA No. 1325 of 1983. The Tribunal observed, vide its order dated February 12, 1986, while disposing of the second miscellaneous appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der being bad in law at this stage. 13. Ld. DR referred to the decision of Hon ble Punjab Haryana High Court in the case of Harbans Singh vs. CIT 132 ITR 77, in which, the decision of Hon ble Supreme Court in the case of Raja J. Rameshwar Rao v. CIT 42 ITR 179 was followed. The proposition laid down in these two decisions is that when a person acquires land with a view to sell it later after developing, he is carrying on an activity resulting in profit and the activity can only be described as a business venture. 14. The third decision, relied upon by ld. CIT(DR) is that of Hon ble Delhi High Court is in the case of Gee Vee Enterprises v. Addl. CIT 99 ITR 375, wherein it was held that a writ petition would not lie if the petitioner had not filed any appeal against the order of Commissioner nor had given any explanation as to why he did not file appeal against order u/s 263 nor any exceptional circumstances were shown to exist. She submitted that assessee had not filed any appeal against the assessment order and, therefore, at this juncture this plea cannot be taken. 15. She further referred to the decision of the ITAT in the case of Krishna Shriram Vs. CIT (ITA no. 1649/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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