TMI Blog2022 (8) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercise of jurisdiction u/s 263 by Revisional Authority by order was not called for as not only the question of quantum of deduction but even the liability and taxability of the consideration arising out of sale of agricultural land by the Assessee had not attained finality. Now that the matter is with CIT(A) and if the ld CIT(A), decides the issue in favour of the Assessee then issues which the ld Revisional Authority has considered to be erroneous and prejudicial to the interest of revenue, are open to be agitated by the Revenue before the Tribunal, by challenging such, findings of the CIT(A). It appears from the para 6 of the impugned order that Ld Revisional authority was specifically informed of pendency of appeal being pending before the Tribunal but still without giving reasons in the light of section 263(1)(c) of the Act, decided the matter and thus committed an error which needs correction. This bench is of firm view that grounds raised by the Assessee in the present Revisional petition are covered on facts and law, in ground raised and pending before the ld CIT(A), in appeal against the original assessment order. However, the ground no 1 deserves to be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso as per deed?. The assessee vide reply dated 31.07.2015, stated that he has sold an agriculture land area 0.7590 Hectare of Rs. 96,30,000/- on 20.07.2012 situated at Makarmatpur Sikheda, Tehsil Modinagar Distt. Ghaziabad. Circle rate of this area, according to Circle Rate List (issue by Office from Sub registrar Modinagar) effective from 14.07.2012 is Rs. 35,00,000/- per Hectare. According to this list, value of this land is Rs. 26,56,500/-. But assessee sold this land of Rs. 96,30,000/- to M/s Omkar Nest Private Limited. This value is higher than Circle rate. Assess has paid Capital Gain on this sale consideration. The AO observed that according to sale deed, value of this land at Rs. 1,16,13,000/- was fictitious circle rate. This circle rate is not mentioned anywhere in the circle rate list issued by Office from Sub registrar Modinagar. Accordingly AO held that the asssessee had paid stamp duty at the value of Rs. 1,16,13,000/- not at Rs. 96,30,000/-, and hence the case falls within the purview of section 50C of the I.T.Act,1961. 3. The Ld. Pr. CIT issued show cause notice dated 05.03.2018 and exercised his Revisional jurisdiction u/s 263 of the Act as it found that the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when the Assessee had informed the Ld. Revisional Authority that the assessment order after being challenged before the ld CIT(A) had reached the ld Tribunal and the ld Tribunal restored the matter back to the file of the ld CIT(A) to decide afresh vide order dated 28.02.2018 then by passing the impugned order u/s 263 dated 26.03.2018 the ld Revisional Authority has fallen an error. He relied Hon‟ble Madras High Court judgment in Smt. Renuka Philip Vs ITO [2019] reported as 409 ITR 567 and Hon‟ble Allahabad High Court judgment in CIT Vs Vam Resorts and Hotels (P) Ltd reported as 418 ITR 723 to contend that if appeal is pending beofre Ld CIT(A) jursidiciton u/s 263 cannot be exercised. 7. On the other hand the ld DR supported the finding of the ld Revisional Authority submitting that there is no error in exercise of jurisdiction. 8. The grounds raised are all connected to aforesaid contention so are taken up together for determination. After taking into consideration the matter on record and submissions, the chronology of events of assessment, appellate proceedings and Revisional proceeding are narrated as below:- DATE-WISE SEQUENCE OF ASSESSMENT AND AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the issue back to the file of the ld CIT(A) for deciding afresh on merit. 11. In regard to this controversy it is imperative to refer to provision of section 263 of the Act which provide; Revision of orders prejudicial to revenue 263(1) (a) to (b) (c) Where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988], the powers of the Commissioner under this Sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. 12. A bare perusal of the section 263(1)(c) of the Act makes it clear that an issue can be subject matter of the Revisional jurisdiction, u/s.263 if the same is not subject matter of appeal before CIT(A). As for instance, if the AO has made additions of three heads and assessee preferred challenging only one addition then so far the remaining two issues remain unchallenged before CIT(A), only they are open for Revision u/s 263. In the judgment relied on behalf of assessee of Hon‟ble Madras High Court in the case of Smt. Renuka Philip Vs IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Section 50 F or 50 C itself has come under challenge, as assessee claimed the land does not fall in category of Capital Assets. After the Tribunal‟s order dated 28.02.2018 this issue as a whole is pending before the ld CIT(A). Thus, when this issue stands restored to the file of the ld CIT(A) by order dated 28.02.2018, the exercise of jurisdiction u/s 263 by Revisional Authority by order dated 26.03.2018 was not called for as not only the question of quantum of deduction but even the liability and taxability of the consideration arising out of sale of agricultural land by the Assessee had not attained finality. 14. In any case now that the matter is with CIT(A) and if the ld CIT(A), decides the issue in favour of the Assessee then issues which the ld Revisional Authority has considered to be erroneous and prejudicial to the interest of revenue, are open to be agitated by the Revenue before the Tribunal, by challenging such, findings of the CIT(A). It appears from the para 6 of the impugned order that Ld Revisional authority was specifically informed of pendency of appeal being pending before the Tribunal but still without giving reasons in the light of section 263(1) ..... 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