2006 (2) TMI 62

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....he hon'ble Income-tax Appellate Tribunal was justified in ignoring detailed and specific instances mentioned by the Commissioner Income-tax in the order under section 263 regarding the transaction of purchase and sale of plots entered into by the assessee over the years with a motive to earn profit and to which the Assessing Officer failed to apply his mind which made the assessment an order erroneous and prejudicial to the interests of the Revenue ?" 2 Heard Shri R. L. Jain, learned senior counsel with Ku. V. Mandlik, learned counsel for the appellant, and Shri S. C. Bagadia, learned senior counsel with Shri D. K. Chhabra, learned counsel for the respondent. 3 The dispute relates to the assessment year 1992-93. The respondent (assessee)....

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....considered by the Assessing Officer does not empower the Commissioner to invoke section 263 ibid for setting aside the order passed by the Assessing Officer in so far as it relates to issue regarding sale of plot in question. It is against this order of the Tribunal; the Revenue has come up in appeal which as stated supra was admitted for final hearing on the aforementioned substantial question of law. 4 At the outset, learned counsel for the assessee (respondent herein) contended that the basis on which the Commissioner had invoked the suo motu revisionary powers under section 263 ibid against the assessee for setting aside the assessment order passed by the Assessing Officer has disappeared during the pendency of this appeal. It was cont....

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....ts on the grounds decided by the Tribunal. Learned counsel for the Revenue did not dispute this position in so far as it related to the case of the co-owner when asked by the Bench. 5 It is clear from a perusal of the Commissioner's order (which has been set aside by the Tribunal by the impugned order) that it was based on the case of the co-owner. Following mention in the order proves this fact : "It is further relevant to note that in the case of the property C-1/45, Neemuch, the other co-owner was Smt Prakash Rani Agrawal, Neemuch and in her case on identical facts sale of part of land has been treated as adventure in the nature of trade by the Assessing Officer vide order dated February 2, 1995, for the assessment year 1993-94." 6 W....