TMI Blog2019 (8) TMI 1623X X X X Extracts X X X X X X X X Extracts X X X X ..... ESIDENT This is an appeal by the Assessee against the order dt. 23/03/2018 of Pr. CIT, Panchkula. 2. Following grounds have been raised in this appeal: 1. That the Ld. Commissioner of Income Tax has wrongly assumed jurisdiction under section 263 of the Act to set-aside the assessment order dated 28.10.2015 passed by the Assessing Officer in as much as the order is neither erroneous nor prejudicial to the interest of Revenue and as such the assumption of jurisdiction under section 263 of the Act is beyond his competence. 2. That the Ld. Commissioner of Income Tax has erred in failing to consider the various replies and submissions placed on record in proceedings before him which is arbitrary and unjustified. 3. That the assessment order having been passed by the Assessing Officer after due application of mind and taking into consideration the various replies, material on record and books of account, the action resorted to by the Commissioner of Income Tax is unwarranted and uncalled for. 4. That the order of Commissioner of Income tax is erroneous, arbitrary, opposed to the facts of the case and is unsustainable in law. 3. From the above grounds it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clearly established that the A.O has not questioned regarding the Long Term Capital Gain claimed by the assessee u/s 10(38) as exempt amounting to ₹ 37,17,800/- shown in the return of income and the order passed by the A.O in this case on 28.10.2015 is erroneous and prejudicial to the interest of revenue. The impugned assessment order of the A.O passed on 28.10.2015 is thus erroneous and prejudicial to the interest of revenue. The impugned assessment order of the A.O passed on 28.10.2015 is cancelled/ set aside under section 263 of the IT. Act, 1961 with the directions to the Assessing Officer to decide the issue mentioned above afresh on merits in accordance with law after giving adequate opportunity of being heard to the assessee and also make detailed inquiry regarding the LTCG claimed u/s 10(38) of the IT. Act, 1961 amounting to ₹ 37,17,800/- as exempt. 5. Now the assessee is in appeal. 6. Ld. Counsel for the Assessee submitted that the Ld. Pr. CIT without making any enquiry considered the assessment order passed by the A.O. as erroneous and prejudicial to the interest of the Revenue. It was further submitted that the assessee furnished all the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Vs. Jyoti Foundation [2013] 357 ITR 388 (Delhi) 6.2 The reliance was also placed on the decision dt. 09/04/2018 of ITAT Bench A Chandigarh dt. 09/04/2018 in ITA No. 771/Chd/2017 for the A.Y. 2012-13 , copy of the said order was furnished which is placed on record. 7. In his rival submissions the Ld. CIT DR strongly supported the orders of the authorities below and further submitted that the A.O. merely obtained the documents from the assessee and placed those on record but no further investigation / verification had been conducted by the A.O. therefore the assessment order passed by him was erroneous and prejudicial to the interest of the Revenue, as such the Ld. Pr. CIT was justified in setting aside the said order by invoking the provisions of Section 263 of the Act. Reliance was placed on the following case laws: Malabar Industrial Co. Ltd. Vs. CIT [2000] 109 Taxman 66 (SC) Surya Jyoti Software Pvt. Ltd. Vs. PCIT, I.T.A No. 2158/Del/2017 (ITAT Del) Deniel Merchants Pvt. Ltd. Vs. ITO, GA No. 599 of 20196 with ITA No. 118 of 2016, Calcutta High Court, 2016 8. We have considered the submissions of both the parties and carefully gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the investments in S.E. Investments Ltd. and the proof of sale of shares for claiming deduction under section 10(38) of the Act, so it cannot be said that the A.O. had not made the enquiries or the assessee did not furnish the relevant documents in support of his claim for the deduction claimed. In the instant case, the A.O. had taken one of the possible view while framing the assessment under section 143(3) of the Act. Thereafter the Ld. Pr. CIT without making any enquiry herself, simply stated that the A.O. should decide the issue a fresh on merits in accordance with law after giving adequate opportunity of being heard to the assessee and also make detailed enquiry relating to LTCG claimed under section 10(38) of the Act. 9. On a similar issue the Hon'ble Delhi High Court in the case of Pr. CIT Vs. Delhi Airport Metro Express Pvt. Ltd. (supra) held as under: For the purposes of exercise of revisional jurisdiction under section 263 of the Income-tax Act, 1961 by the Principal Commissioner the conclusion that the order of the Assessing Officer is erroneous and prejudicial to the interests of the Revenue has to be preceded by some minimal inquiry. If the Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding on the merits. The Commissioner was patently wrong in stating that Schedule III to the Wealth-tax Act, 1957, was not applicable but the Assessing Officer should have adopted the formula/method. This reasoning could not be accepted and did not show or establish that the assessment order was erroneous. 11. Similarly the Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Jyoti Foundation (supra) held as under: Revisionary power under section 263 of the Income-tax Act, 1961, is conferred by the Act on the Commissioner/Director of Income-tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. Orders which are passed without inquiry or investigation are treated as erroneous and prejudicial to the interests of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not perse or normally treated as erroneous and prejudicial to the interests of the Revenue because the revisionary authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. In cases where there is inadequate enquiry but not lack of enq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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