TaxTMI 
TaxTMI 
2012 (8) TMI 389
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....ded income from LTCG at Rs. 10,25,078/-. On the intimation received from the succeeding AO, on the issue of LTCG and excess allowance of deduction under section 80C, proceedings u/s 263 were initiated and the CIT set aside the order holding that the sale of flats during the year was in fact short term capital gains and not long term as the sale was effected within 36 months of their acquisition. He, therefore, held that the order passed by the AO dated 15-12-2008, wherein the AO had accepted the sale of flats by the assessee to be LTCG, was erroneous and prejudicial to the interests of the revenue. 3. The Authorised Representative appearing on behalf of the assessee explained the facts of the case, and pointed out that the revision proce....
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....ns dated 18-08-2006. The A.R. also submitted that the AO had issued a notice u/s 154 seeking to rectify (i) that the gain on the sale of flat is a short term capital gain and (ii) deduction u/s 80-C has been allowed at Rs. 1,00,000/- which is not allowable against income under the head capital gain. The A.R. pointed out that detailed reply was filed vide letter dated 10-01-2011 in response to the rectification notice, the A.R. submitted that this rectification is still to be disposed off. The A.R. further submitted that the assessee had acquired valuable rights, vide agreement dated 14-03-2001, which he submitted, is fortified by Circular No. 471 dated 15-10-1986, given in 162 ITR 41 (St) and Circular No. 672 dated 16-12-1993, given in 115 ....
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....een examined by the AO, subsequently, the CIT cannot take different view on the same facts and hence action u/s 263 is bad in law. 8. The DR basically relied on the order passed u/s 263 by the CIT and submitted that there was no evidence of the possessing having been taken by the assessee and that through the rectification, the assessee had actually taken different flats, which according to him was within the three years period and hence was short term and that the action of CIT in initiating proceedings under section 263 was correct. 9. We have heard the arguments of both the sides and have perused the material brought on record in the appellant's paper book (APB), we find that the AO, in the regular assessment proceedings had called....
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....f section 263. The AO after making an enquiry and eliciting a response from the assessee came to the conclusion that the assessee was entitled to depreciation on the value of securities held on the trading account. The Commissioner could not have treated this finding to be erroneous or to be prejudicial to the interests of the Revenue. The observation of the Commissioner that the AO had arrived at a finding without conducting an enquiry was erroneous, since an enquiry was specifically held with reference to which a disclosure of details was called for by the AO and furnished by the assessee. The Tribunal was justified in holding that recourse to the powers under section 263 was not warranted in the facts and circumstances of the case". 1....
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....t - 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". In these circumstances, taking into account all the facts emerging from the orders of the revenue authorities, the action to invoke revision proceedings under section 263 is bad in law and cannot be sustained. 11. We, therefore, cancel the proceedings under section 263 on the issue of LTCG as bad in law and as a consequence, we sustain and uphold the order passed under section 143(3) by the AO on the issue of capital gains. 12. The AR had also mentioned the second part of revision proceedings with regard to excess allowance of d....