TMI Blog2021 (7) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... gards to certain guideline having regard to the following frequently occurring factors: sale of land for housing purpose; obtaining permission to sell the land for non-agriculture purpose; absence of cultivation prior to sale, absence of intention to cultivate land in future, location of land within in municipal area, the nature of the surrounding area; the price at which the land was sold within the municipal area and entry in municipal record. All these factors were not considered by the AO while passing the assessment order. We are of the prima facia view that the ld. PCIT validly assumed his jurisdiction for exercising his power under section 263 of the Act by taking view that the order passed by assessing officer is erroneous and in so far as prejudicial to the interest of justice. No doubt, that ld. Pr.CIT invoked the jurisdiction under section 263 of the Act on 23.03.2021, just before seven days of expiry of period of limitation for passing revision order. We find, though, the assessee filed its reply; however, it could not be re-opened and considered by ld. PCIT, due to glitch in the ITBA system. Facts remained that the ld. PCIT passed the impugned order without consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fails because under the same jurisdiction, the appellant s shave (2/3) in the land is taken for revision, while on the same set of facts, the balance share (1/3) of relative of the assessee passed u/s. 143(3) is allowed to be continued to be classified as gains . (III) Merits: (1) With the assesse indisputably being an agriculturist, selling its agricultural land as agricultural land after holding it for a period of 10 years, would not characterize such transaction one-off in a year into adventure in the nature of trade. (2) If every transaction of capital gains if considered as though the Assessing Officer did not put inquiry on the point of view of adventure in the nature of trade, each of the case would be amenable to revision. (3) On the facts and circumstances of the case, transaction of sale agricultural land squarely fell within the head Capital Gains . (IV) Miscellaneous: The appellant craves leave to add, alter or vary any of the grounds of the appeal. 2. Brief facts of the case as gathered from the order of lower authorities are that the assessee is having status of Hindu undivided family (HUF), filed its return of income fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the same date 29.03.2021 for furnishing reply in a proper format either on ITBA portal or through Email by 30.03.2021 up to 7 PM. The ld. Pr.CIT noted that the assessee has neither uploaded reply on ITBA portal nor sent through Email. The Ld. Pr. CIT, thereafter proceeded to consider the material available before him. The Ld. Pr.CIT on the basis of material available before him noted that in assessment year 2013-14, 2014-15 to 2018-19, the assessee traded in various land dealings trading activities. The assessee has frequently purchase and sold the land which qualifies the assessee as a business in land and not as a capital asset for personal use. The assessee sold the said land at a consideration of ₹ 33.82 crore and claimed deduction under section 54B of the Act of ₹ 17.75 crore. No documentary evidence for use of land for agricultural purpose or expenses incurred for agricultural yield is filed. Thus, in absence of documentary evidence, it is not established that land was used for agricultural purpose, which is the primary condition for claiming deduction under section 54B of the Act. The Ld. Pr.CIT after referring the decision of Hon ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to authorised representative on 27.03.2021. 27th March 2021 was Saturday. The AR for the assessee vide application dated 27th March 2021 sought adjournment for a week. Next day was 28.03.2021 being Sunday. The ld. Pr.CIT pleased to grant the adjournment for two days and fixed the case on 29.03.2021. 29.03.2021 was a Holiday on account Colour Day of Holi festival. Further, 30.03.221 was the next working day. The assessee was allowed time up to 5.00 pm to file his reply. The assessee prepared a detailed response which was filed (uploaded) in PDF Format at ITBA Portal of ld Pr CIT on 30.03.2021. As recorded by ld. Pr.CIT in his order that due to technical glitch, the e-filing Portal of ld. Pr.CIT could not be opened. The ld. Pr.CIT again issued a notice asking the assessee to uphold the reply again. The assessee came to know about the said notice only after the order was passed by ld. Pr.CIT. The assessee was under bonafide belief that the reply of the assessee was received in the office of Ld. Pr.CIT. Even after receipt of order under section 263 of the Act, the assessee filed application under section 154 of the Act on 14.04.2021 along with detailed submission for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, thus, the proposed revision itself in self-conflicting in its approach and required to be quashed. The ld.AR further submits that during the assessment, the ld.AO made requisite enquiry about the purchase of land, sale of land, evidence of agricultural activities, details of crops, head wise agricultural expenses, details of sale proceed of agricultural product along with extract of Form 7/12 (land record). The assessee furnished the complete details to the satisfaction of ld.AO. The ld.AO after compete satisfaction of the queries, allowed the capital gain. During the year, the solitary transaction of sale of land is with regard to the sale of land in question. No other sale of purchase made by assessee. The assessee purchased the said land in 2005. The land was sold on 21.03.2016 after seeking proper permission as prescribed under section 63 of the Act of Gujarat Tenancy and Agricultural Land Act, without which the agricultural land could not be sold to a non-agriculturalist. The assessee always has shown investment in lands in its books of accounts. The books of accounts of assessee were duly examined by the ld.AO before passing the assessment order. The ld.AR further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The AO , while passing the assessment order has not applied his mind. 10. On the contention of ld.AR that assessee was not granted fair and proper hearing, the ld. CIT-DR for the revenue submits that the assessee was given liberty to furnish the reply. The assessee instead of filing reply sought adjournment for one week. The one week adjournment was not at all possible as the time period for passing the order under section 263 of the Act was expiring on 31.03.2021. The ld. Pr.CIT graciously allowed the assessee to file his reply on his ITBA Portal. When the reply of assessee could not be opened due to technical glitch as the same was not filed in proper format. The ld. Pr.CIT further allowed the assessee to furnish their reply through email. The assessee failed to furnish the reply before the ld. Pr.CIT in time. The ld. Pr.CIT revised the order after granting the opportunity of hearing and considering the material available on record. The ld. CIT-DR for the Revenue submits that assessee has no case either on law or on facts. The assessee cannot seek parity under law on the ground that his co-owner was allowed exemption of capital gain. If the co-owners are allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Income-tax Officer is erroneous insofar as it is prejudicial to the interests of the revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer 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. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
