TMI Blog2022 (11) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... lable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of AO to bring on record the even correct facts or non-conduct of enquiry verification of facts, is concerned, we find that the assessing officer made requisite investigation before allowing relief to the assessee. The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, in nothing but change of opinion. It is settled position in law that no revision of assessment order is permissible on mere change of opinion. Therefore, we are of the view that on the basis of material before the assessing officer, she took reasonable, plausible and legally sustainable view, which cannot be branded as erroneous. There is no doubt that while accepting the claim in the assessment, there may be some loss of revenue, tax can be levied only with the authority of law, and every lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of the Income Tax has grievously erred I assuming that the details and explanation in respect of land sold by the assessee was not duly verified and the Assessing Officer had not made inquiries during the course of proceedings and without application of mind finalized the order u/s 143(3) rws. 147 of I.T Act and order passed/s 154 of the Act is contrary to the fact of the case. 6. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax has grievously erred I directing to the Ld. AO to pass fresh assessment order. 7. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of entire proceedings are bad-in-law and invalid as assessment order u/s 143(3) of the Act as well as order u/s 154 of the Act for the same year were framed, wherein due inquiry was made. 8. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax has grievously erred in setting aside the assessment order framed u/s 143(3) rws. 147 of the I.T. Act as well as order u/s 154 of the Act without pointing out as to how the order is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 148 of the Act. The assessing officer recorded that reasons recorded was provided to the assessee. The assessee filed objection against the re-opening. The objection of assessee was rejected by a speaking order dated 07.10.2019. After rejecting the objection filed by assessee, the Assessing Officer proceeded for re-assessment. During the assessment, Assessing Officer recorded that assessee per information, the assessee sold land situated at Block No. 63, Moje Valak, Taluka Kamrej, District Surat and shown sale consideration of land at Rs. 95 lakhs. The stamp duty authority determined the fair market value of property at Rs. 3,47,25,000/-. Thus, the difference of Rs. 2,52,25,000/- (Rs. 3,47,25,000 95,00,000), is liable to tax under section 50C. The Assessing Officer further noted that property/ land was acquired by the assessee prior to April 1981. The assessee adopted the value of property as on 01.04.1981 @ Rs. 300/- per square meter on the basis of Government registered valuer report. On further examination of working of capital gains, it was noted by the Assessing Officer that by valuing at higher rate, the assessee has shown Long Term Capital Loss on sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PCIT recorded that Assessing Officer passed assessment order dated 24.12.2019 under section 143(3) r.w.s. 147 in allowing deduction of Rs. 95 lakhs which should have been made in respect to the cost of acquisition as on 01.04.1981 and without application of mind, which makes the assessment order dated 24.12.2019 as erroneous and in so far as prejudicial to the interest of revenue, which required revision of the order under section 263 of the Act. The Assessing Officer allowed the deduction of Rs. 3.27 crores in the rectification order which was not allowed in the original assessment order, hence the rectification order dated 27.01.2020 is also erroneous in so far as prejudicial to the interest of revenue. The assessee was allowed opportunity of hearing for explaining the fact and to adduce evidence /documents, if any, against such proposal and to file the reply on e-filing portal on or before 14.03.2022. 6. In response to show cause notice, the assessee filed her reply dated. The reply of assessee is recorded in para-4 of the order of Ld. PCIT. In reply, the assessee submitted that in contents of show cause notice dated 05.03.2022 it is mentioned that Assessing Officer has not mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of this case as Assessing Officer had passed the assessment order without making inquiry or verification, which should have been made in respect of issues and allowed excess relief to the assessee. The Ld. PCIT set aside the assessment order under section 143(3) r.w.s. 147 dated 24.12.2019 as well as rectification order under section 154 dated 27.03.2020 with the direction the Assessing Officer to pass afresh assessment order taking into consideration to the issues which may have been already considered together with the concerned issues by him after giving reasonable and sufficient opportunity of being heard to assessee. Aggrieved by the order of Ld. PCIT, the assessee has filed present appeal before the Tribunal. 8. We have heard the Ld. Authorized Representative (AR) for the assessee and Ld. Commissioner of Income-Tax-Departmental Representative (CIT-DR) for the Revenue. With their assistance, we have also gone through the contents of orders of lower authorities. The ld AR for the assessee submits that assessment order passed by the assessing officer is not erroneous and cannot be a subject matter of revision under section 263. The assessing officer during the assessment mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 154 transaction. The assessing officer while passing the rectification order accepted the value of asset as on the date of sale as suggested by DVO and computed the capital gain as per the decision of Gujarat High Court in PCIT Vs Ravjibhai Naginbhai Thesia (2016) 388 ITR 358 (Gujarat). The assessment order, which was rectified later is not at all erroneous or prejudicial to the interest of revenue. The ld AR for assessee in his without prejudice submissions submits that even, if it is presumed that the order is prejudicial to the interest of revenue, the twin condition of section 263 is not fulfilled as the assessment order is in consonance with the view taken by Jurisdictional High Court. The ld AR for the assessee submits that the order passed by the ld PCIT in nothing but change of opinion, thus, the revision order passed by him is liable to be set-aside in accepting the appeal. 10. To support all his submissions, the ld AR for the assessee relied on the following case laws; Malabar Industrial Company Vs CIT (2000) 243 ITR 83-SC/ 109 TAXMAN 66-SC, CIT Vs G.M. Mittal Stainless Steel (P) Ltd (2003) 130 Taxman 67-SC, CIT Vs Gabriel India Ltd (1993) 71 Taxman 585 (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings, the assessing officer directed the assessee to furnish copy of return of income, computation of income, and sale deed of the land. The assessee furnished all such required details before assessing officer. On examination of such details, the assessing officer find that assessee has shown sale consideration of Rs. 95.00 lacs and has shown long term capital loss of Rs. 2.32 Crore. The assessee acquired such asset prior to 01.04.1981, therefore, the assessee adopted its value as on 01.04.1981 for the purpose of computation of capital gain. The assessee on the basis of Government approved valuer adopted the rate of land (asset) at Rs. 300/- per square meter. The area of land was 13890 square metre. The assessee worked out the cost of acquisition of asset at Rs. 41,67,000/-. The assessing officer was of the view that the assessee has shown the cost of acquisition on higher side to reduce the capital gain. The assessing officer made a reference to DVO under section 55A for estimation of value of the land as on 01.04.1981. (as recorded in para-11 of assessment order). As report of DVO was not received and the period for passing assessment order was likely to expire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous prejudice has been caused to the interests of the revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. One finds that the expressions 'erroneous', 'erroneous assessment' and 'erroneous judgment' have been defined in Black's Law Dictionary. According to the definition, 'erroneous' means 'involving error; deviating from the law'. 'Erroneous assessment' refers to an assessment that deviates from the law and is, therefore, invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the Assessing Officer in fixing the amount of valuation of the property. Similarly, 'erroneous judgment' means 'one rendered according to course and practice of Court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principles. The Hon ble High Court also held that from the definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an assessing officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. An order can be said to be prejudicial to the interests of the revenue if it is not in accordance with the law in consequence whereof the lawful revenue due to the State has not been realized or cannot be realized. There must be material available on the record called for by the Commissioner to satisfy him prima facie that the aforesaid two requisites are present. If not, he has no authority to initiate proceedings for revision. Exercise of power of suo-motu revision under such circumstances will amount to arbitrary exercise of power. It is well-settled that when exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on record to satisfy it in that regard. If the action of the authority is challenged before the Court, it would be open to the Courts to examine whether the relevant objectives were available from the records called for and examined by such authority. The decision of the ITO could not be held to be 'erroneous' simply because in his order he did not make an elaborate discussion in that regard. Moreover, the Commissioner himself, even after initiating proceedings fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It can be exercised only when an order is erroneous, the section 263 will be attracted. 18. Now again adverting to the facts of the present case, we find that the assessing officer while passing the assessment order which was rectified on receipt of DVO s report is a reasonable, plausible and legally sustainable, which cannot be branded as erroneous. Since, the assessing officer has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of Assessing Officer to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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