TMI Blog2022 (5) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... as it constitutes substitution of opinion which cannot be held as erroneous. Thus, when the assessment made by the A.O. is in accordance with law, it cannot be termed as erroneous and when it is not erroneous it cannot be prejudicial to the interest of revenue. Therefore, the decision of Hon ble Supreme Court in the case of Amitabh Bachan supra, is not applicable to the facts on hand. We find in the present case, the PCIT issued a show cause notice for non examination of LTCG, without determining the same, directing the A.O. to conduct de novo assessment i.e. re-examination, is not sustainable under law, therefore, in light of the discussion made by us herein above with the support of decisions relied on and in the facts and circumstances of the case, we hold, the PCIT in treating the assessment erroneous and prejudicial to the interest of revenue is not justified under revision proceedings u/s. 263 of the Act and it is set aside. Decided in favour of assessee. - ITA No. 1155/PUN/2018 - - - Dated:- 2-5-2022 - SHRI S. S. VISWANETHRA RAVI , JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE , ACCOUNTANT MEMBER Assessee by : Shri Sanket Milind Joshi Revenue by : Shri Naveen G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. A.R referred to an order in the case of Synergy Entrepreneur Solutions (P) Ltd. reported in 13 ITR-Trib. 377 at Page No. 24 of the paper book and submits that the issue arose before the Mumbai ITAT Benches as to whether exercise of revision power on the ground other than the ground of revision as set out in the show cause notice, could be held to be sustainable in law. He argued that the Tribunal by placing reliance on the decision of the co-ordinate Bench in the case of Maxpak Investments Ltd., which in turn, by placing reliance in the case of G.K. Kabra reported in 211 ITR 336 (A.P.) held that if the ground of revision is not mentioned in the show cause notice issued u/s 263, that ground cannot be made the basis of the order passed under such section for the simple reason that the assessee would have had no opportunity to meet the point. The ld. AR also submits that the Revenue did not prefer any appeal against the order of Mumbai Tribunal in the cases of Synergy Entrepreneur Solutions (P) Ltd. and Star India Ltd. 7. Further, he referred to an order in the case of Star India Ltd. Reported in 14 ITR-Trib 106 at Page No. 30 of the paper book and submits that there in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the show cause notice, it was held that proper enquiries were not made and the issue was decided without application of mind by the AO. He referred to Hon'ble Apex Court in the case of CIT Vs. Amitabh Bachan reported in 384 ITR 200 and argued that a show cause notice was not required to be issued and even if it was issued, the PCIT need not confine himself to the issues mentioned in the show cause notice, the PCIT has confined himself to the issue raised in the show cause notice, though the findings given and final directions on that issue were after appreciation of facts mentioned in the assessment order and the submission made by the assessee. He vehemently argued that the action taken by the PCIT is well within the framework of section 263 of the Act as well as the contours defined by the Hon ble Apex Court in the case of CIT Vs. Amitabh Bachan (Supra). 10. Heard both parties and perused the material on record. We find that in the first page of impugned order, the PCIT prima facie held that the A.O has not examined the issue related to LTCG of Rs. 1,40,24,360/- on sale of plot and the entire activity of transaction of land falls in the ambit of business activity. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion on perusal of the assessment record that the A.O. has not examined the issue related to long term capital gain vide para 2 of the impugned order and directed the A.O. to frame the assessment de novo vide para 8 of the impugned order. Therefore, it is clear that the PCIT shifted the stand on whether it was a case for revision on the ground of non-examination in respect of long term capital gain or the A.O. did not make necessary verification about the long term capital gain. Further it was brought to our notice that the respondent revenue did not prefer an appeal against such order before the Hon ble High Court of Bombay. Therefore, the finding of the Mumbai Tribunal in the case of Synergy Enterprenuer Solutions Pvt. Ltd (supra) is applicable to the facts on hand to hold that the revisionary power exercised u/s. 263 of the Act by the PCIT is not sustainable. 12. Further, the order of Delhi Tribunal in the case of D.S. Sangwam (supra) as relied on by the ld. A.R, we note that the CIT initiated revision proceedings that the A.O. did not make five additions/disallowances, had the said additions/disallowance been made there would have been substantial tax effect the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is untenable, again, for another reasons as it constitutes substitution of opinion which cannot be held as erroneous. Thus, when the assessment made by the A.O. is in accordance with law, it cannot be termed as erroneous and when it is not erroneous it cannot be prejudicial to the interest of revenue. Therefore, the decision of Hon ble Supreme Court in the case of Amitabh Bachan supra, is not applicable to the facts on hand. 14. We find in the present case, the PCIT issued a show cause notice for non examination of LTCG, without determining the same, directing the A.O. to conduct de novo assessment i.e. re-examination, is not sustainable under law, therefore, in light of the discussion made by us herein above with the support of decisions relied on and in the facts and circumstances of the case, we hold, the PCIT in treating the assessment erroneous and prejudicial to the interest of revenue is not justified under revision proceedings u/s. 263 of the Act and it is set aside. Thus, the additional ground No. 2 treated as a preliminary issue is allowed and in view of the same, all remaining grounds become academic requiring no adjudication. 15. In the result, the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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