TMI Blog2019 (6) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment after conducting necessary enquiry with regard to the purchase of shops, the assessment order cannot be held to erroneous and prejudicial to the interests of Revenue. The facts on record clearly reveal that the AO has completely failed to examine the applicability of section 56(2)(vii)(b)(ii) to the subject transactions. Thus, non examination / non consideration of applicability of the aforesaid provision makes the assessment order not only erroneous but prejudicial to the interests of Revenue. Therefore, in our considered opinion, learned Principal CIT has correctly exercised his power under section 263 to revise the assessment order. We may observe that while setting aside the assessment order CIT has not expressed any op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order passed under section 143(3) is neither erroneous nor prejudicial to the interests of Revenue. 2. Erred in not considering the submissions and genuineness of the transaction. Wherein as per facts and circumstances of the case, transaction was genuine and order passed under section 143)3_ should not be cancel by the Pr. Commissioner of Income Tax and it is without prejudicing the ground of appeal mentioned in 1. 3. Brief facts are, the assessee is an individual. He derives income from remuneration received from Maruti Air Couriers and Cargo Pvt. Ltd. and interest received. For the assessment year under dispute, the assessee filed his return of income on 31st March 2015 declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the interests of the Revenue. Accordingly, he issued a show cause notice to the assessee to explain why the assessment order should not be set aside. In response to the show cause notice, though, the assessee filed his reply stating that the assessment order passed is neither erroneous nor prejudicial to the interests of Revenue, since, the Assessing Officer, while completing the assessment, had enquired into the purchase of shops by the assessee, however, learned Principal CIT, rejecting the submissions of the assessee, held the assessment order to be erroneous and prejudicial to the interests of Revenue, as the Assessing Officer had failed to examine the applicability of provisions of section 56(2)(vii)(b)(ii) of the Act. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order. 6. We have considered rival submissions and perused the material on record. From the facts and materials available on record it is evident that the value of the two shops purchased by the assessee as determined by the stamp duty valuation authority for stamp duty purpose is in excess of the declared sale consideration mentioned in the registered sale deed. The aforesaid factual position remains uncontroverted as the learned Authorised Representative accepted the aforesaid fact. As per section 56(2)(vii)(b)(ii) of the Act, brought to the statute by Finance Act, 2013, w.e.f. 1st April 2013, if the stamp duty value exceeds the declared sale consideration, such excess amount has to be treated as income of the assessee wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly exercised his power under section 263 of the Act to revise the assessment order. Further, we may observe that while setting aside the assessment order, learned Principal CIT has not expressed any opinion with regard to applicability of section 56(2)(vii)(b)(ii) of the Act. Rather he has directed the Assessing Officer to make necessary enquiry keeping in view the provision of section 56(2)(vii)(b)(ii) of the Act.Therefore, it is open for the assessee to make all submissions available to it to demonstrate that the provisions of section 56(2)(vii)(b)(ii) of the Act is not applicable to the subject transactions. We further direct the Assessing Officer to consider the submissions made by the assessee on its own merits and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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