TMI Blog2021 (12) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, the grounds of appeal raised by the assessee stand allowed. - ITA No.809/PUN/2019 And ITA No.810/PUN/2019 - - - Dated:- 22-12-2021 - Shri Intu RI Rama Rao, AM And Shri Partha Sar Athi Chaudhury, JM For the Assessee : Smt. Hema For the Revenue : Shri Sunil Kumar ORDER PER BENCH : These are the appeals filed by two different assessees directed against the orders of ld. Pr. Commissioner of Income Tax-4, Pune ( Pr.CIT for short] commonly dated 25.03.2019 passed u/s 263 of the Income Tax Act, 1961 ( the Act ) for the assessment year 2014-15. 2. Since the identical facts and issues are involved in both the appeals, we proceed to dispose of the same by this common order. ITA No.810/PUN/2019 : 3. For the sake of convenience and clarity, the facts relevant to the appeal in ITA No.810/PUN/2019 are stated herein. 4. The appellant raised the following grounds of appeal :- 1. In the facts and circumstances of the case and in law, in the absence of conditions precedent for assumption of jurisdiction u/s 263 of the I.T. Act 1961 the impugned order passed by the learned Pr.CIT being bad in law, null and void arbitrary, baseless, devoid of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculture land not amounting to Capital asset giving rise to any taxable Capital gains as on the date of conversion. In the circumstances it may please be held that the appellant had rightly claimed the deduction u/s 54B of the I.T. Act 1961 with all consequential reliefs. 7. The learned Pr.CIT has failed to appreciate that in view of provisions of Section 45(2] of the I.T. Act 1961, the capital gains on sale of impugned agriculture land introduced by the appellant as stock in trade of his business had become chargeable to income tax during previous year relevant to A.Y.2014-15 and hence in view of the amended provision of Section 54B w.e.f. 01/04/2013 the Capital Gains were rightly claimed as exempt u/s 54B of the I.T. Act 1961 and the same may please be allowed to the appellant assessee with all the consequential reliefs. 8. The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal. 9. Any other equitable and just order that may be deemed fit and proper by your honour may please be passed in the matter. 5. Briefly, the facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in accordance with law. It is further contended that there is no material on record to show that the assessment order passed is erroneous. However, the ld. Pr.CIT on consideration of these submissions made by the assessee held that the Assessing Officer had failed to examine the claim for deduction u/s 54B without verification as to the date of transfer of original asset and the nature of purchase of land etc. and, therefore held that the assessment order passed is erroneous and prejudicial to the interests of the revenue. Accordingly, the ld. Pr.CIT set aside the assessment with a direction to the Assessing Officer to re-do the same after due verification. 7. Being aggrieved, the appellant is in the present appeal before us. 8. The ld. AR for the assessee submits that the issue of eligibility of deduction u/s 54B claimed by the appellant was examined by the Assessing Officer during the course of assessment proceedings. It is submitted that the investments made upto 31.03.2014 were duly reflected in the Balance Sheet and the balance investments was made before the due date of filing of the return of income for the assessment year 2014-15. It is further submitted that the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal relates to the validity of the revision exercised by the ld. Pr.CIT u/s 263 of the Act in respect of claim for deduction u/s 54B of the Act of ₹ 4,69,91,740/- allowed by the Assessing Officer. The Parliament had conferred the power of revision on the Commissioner of Income Tax u/s 263 of the Act in case the assessment order passed is erroneous and prejudicial to the interests of revenue. In order to invoke the power of revision, the above two conditions are required to be satisfied cumulatively. References in this regard can be made to the decision of the Hon ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT, 243 ITR 83 (SC) and in the case of CIT vs. Max India Ltd., 295 ITR 282 (SC). The error in the assessment order should be one that it is not debatable or plausible view. In a case where the Assessing Officer examined the claim took one of the plausible view, the assessment order cannot be termed as an erroneous . We may examine the facts of the present case to find out whether the Assessing Officer had carried out necessary enquiries and verification while allowing the claim of the assessee for deduction u/s 54B of the Act. We had ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between lack of inquiry and inadequate inquiry . If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of lack of inquiry , that such a course of action would be open. In Gabriel India Ltd.'s case (supra), law on this aspect was discussed in the following manner : . . . From a reading of sub-section (1) of section 263, it is clear that the power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. . . . There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
