TaxTMI 
TaxTMI 
2017 (2) TMI 1185
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....rroneous and prejudicial to the interest of the revenue, and his such conclusions are based on his surmises and guesses and are contrary to the facts and material on record. 2. That the order u/s 263 dated 26th March 2012 passed by the Ld. Commissioner of Income Tax is without jurisdiction, not good in law and void, as the order u/s 143(3) dated 30th December 2009 was neither erroneous nor prejudicial to the interest of the revenue. 3. That the Ld. Commissioner of Income Tax, Central-II erred in law as well as in facts in setting aside the order u/s 143(3) dated 30th December 2009 and directing the Assessing Officer to modify the assessment order in light of the directions stated in his order u/s 263, and his such direction is bad in law and void and contrary to the provisions of law, as the assessment order u/s. 143(3) was neither erroneous nor prejudicial to the interest of the revenue. 4. Without prejudice to the above, The Ld. Commissioner of Income Tax erred in law as well as in facts in holding that the Assessing Officer accepted the sale consideration as declared by the assessee on the sale of Property at Village Shorkha (Dadri), without appreciating the relevant statu....
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.... this issue during the course of assessment proceedings therefore the provisions of the section 50 C have been overlooked during the course of assessment proceedings and he held that order of the Ld. assessing officer in not adopting the fair market value according to the stamp duty authorities as it exceeds the sale consideration is an error in the assessment order and it is prejudicial to the interest of the revenue. With respect to the set off of brought forward long-term capital losses it was found by the Ld. CIT that assessee in the return of income has claimed set-off of long term capital loss of Rs. 3675100/-in assessment year 2006.07 however same was not declared in the return filed by the assessee in form number 2D. Further the documents filed by the assessee during the course of assessment proceedings for assessment year 2007-08 shows that the alleged losses on account of sale of agricultural land at Haryana which is not chargeable to tax as per the provisions of section 2 (14 ) of the income tax act. Therefore, it was observed by the Ld. CIT that the Ld. assessing officer did not consider this before allowing the assessee's contention for the set-off of the above los....
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....is appeal. 4. The Ld. AR submitted before us that order passed by the Ld. assessing officer is neither erroneous nor prejudicial to the interest of the revenue is it was passed with due application of mind and after proper Inquiry. He submitted that capital gain on sale of property at village shorkha was sold for Rs. 20 lakhs and being 50% share of the assessee the sale consideration was taken at Rs. 10 Lacs by filing return of income. He admitted that the sale deed the value of the property taken for the stem duty purpose was Rs. 58.75 lakhs however the stamp duty rates cannot be applied to the facts of the cases of the sale of the land because the property was situated in flood prone area and for this he referred to page No. 71 to 73 of the paper book which is a valuation report submitted by the approved valuer valued the property is 19.97 lakhs stating that the said land is situated in water logging area low-lying area so that the land rate is lower than the other land. He further referred to the page No. 38 of the paper book which is a inquiry letter dated 13/07/2009 issued by the Ld. assessing officer before framing the assessment under section 143 (3) which is subject to cha....
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....63 of the income tax act by the Ld. CIT. a) On the issue of the claim of the assessee that provisions of section 50 C of the income tax act do not apply to the sale of the land made by the assessee during the year for Rs. 20 lakhs and for which the share of the assessee was only Rs. 10 Lacs as it was stated to be situated in waterlogging area. He therefore submitted that the fair market value adopted by the stem duty purposes of Rs. 58.75 lakhs cannot be adopted. On perusal of the query letter issued by the Ld. assessing officer it was noted that he has asked information about the copy of sale deed in respect of immovable property sold as well as cost of acquisition of those property. The Ld. assessing officer has apparently not applied his mind to the applicability of the provisions of section 50 C of the income tax act to the sale consideration shown by the assessee when the sale deed was also available before him where the fair market value of the property was shown as 58.75 lakhs. In view of this we are of the opinion that Ld. assessing officer has not conducted any Inquiry on this aspect of the computation of capital gain and therefore the order of the Ld. assessing officer ....
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....t has been held as under:- "28. We have considered the detailed submissions of both the parties and have perused the record of the case keeping in view the various authoritative pronouncements in this regard. There cannot be any quarrel with the legal propositions, as advanced by both the parties. It has consistently been held that if the AO's conclusion is arrived at after due application of mind on a particular issue, then the order cannot be said to be erroneous. 'Due application of mind' implies that if the assessee has merely responded to the AO's query and the AO, without proper verification of replies, accepts the same, then, it cannot be said to be a case of due application of mind. 28.1 Ld. Special counsel has rightly pointed out that the expression, 'inquiry', 'lack of inquiry' and 'inadequate inquiry', have not been defined and, therefore, when the action of the AO would be suggestive of lack of inquiry or inadequate inquiry, will depend upon the facts obtaining in a particular case. What emerges as a broad principle from the various decisions is that where the AO has reached a rational conclusion, based on his inquiries and m....