TaxTMI 
TaxTMI 
2017 (9) TMI 559
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....43(3) of the Act. The Assessing Officer (AO) allowed the exemption claimed u/s 54F of the Act after discussing the claim related to LTCG earned on transfer of asset/right in the property of Rs. 35,25,000/-. Subsequently, the assessment was revised by ld. CIT u/s 263 of the Act vide order dated 21.08.2014. The ld. CIT issued notice dated 14.06.2013 u/s 263 on the ground that assessee claimed deduction u/s 54F of Rs. 32.5 Lakhs. The assessee was only dormant investor in the building and entire day to day activities were being looked after by assessee's wife. It was further mentioned that the lump sum compensation should have been treated as 'Income from other Sources' instead of 'Capital Gain'. The notice further contains the record reveals that AO has made enquiry in respect of transaction regarding receipt of amount of Rs. 75 Lakhs on 30.08.2010 whereas as per AIR information, the transaction were taken place in respect of five properties for having received Rs. 55 Lakhs, 56 Lakhs, 54 Lakhs, 75 Lakhs and Rs. 43,61,741/-. The AO has lost site, in making proper enquiry in respect of other transaction relating to the sale of property for which the AO was under obligation to make enqui....
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....l before us. 3. We have heard Dr. P. Denial Advocate / ld. Authorized Representative (AR) of the assessee and Sh. N.P. Singh CIT-DR/ ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee argued that assessment order passed by AO is neither erroneous nor prejudicial to the interest of Revenue. The AO made proper enquiries before granting exemption u/s 54F of the Act. The AO made adequate and sufficient enquiry during the assessment proceedings. The AO recorded the statement of coowner, Smt. Madhavi Sunil Shah, who has realized remaining sale consideration of the property. After recording and considering the statement of Smt. Madhavi Sunil Shah, the AO passed detailed and reasoned order. In support of his submission, the ld. AR of the assessee relied upon the decision in following case: 1. CIT v/s. Gabriel India Ltd. (Bom) 203 ITR 108. 2. CIT v/s. Sunbeam Auto Ltd. (Delhi) 332 ITR 167, 3. CIT v/s. Vikas Polymers (Delhi) 341 ITR 537, 4. CIT v/s. Arvind Jewellers (Guj.) 259 ITR 502, 5. CIT v/s. D.G. Gopala Gowda (Kar) 354 ITR 501, 6. CIT v/s. Development Credit Bank Ltd. (Bom) 323 ITR 206, 7....
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.... (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (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 ....
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.... been written more deliberately. Section 263 does not visualize a case of substitution of judgment by the Commissioner for that of the assessing officer who passed the order unless the decision is held to be erroneous. Where the assessing officer has exercised the quasi-judicial power vested in him according to law and arrived at the conclusion such conclusion cannot be found to be erroneous simply because the Commissioner does not feel satisfied with the conclusion as held by Hon'ble Delhi High Court in CIT Versus Sunbeam Auto Ltd 332 ITR 167(Delhi) and in CIT versus Anil Kumar Sharma 335 ITR 83(Delhi). 7. The perusal of assessment order reveals that AO raised query related with the sale consideration received on transfer of right in the tenanted property for Rs. 35,25,000/-. The assessee furnished his reply along with affidavit-cum-declaration of Smt. Madhavi S. Shah vide reply dated 04.03.2013. In the affidavit, Smt. Madhavi S. Shah made the following deposition: "I along with one Mr Bharat Kantilal Mehta of 50, Dhanji Street, Zaveri Bazar, Mumbai 400 003 have purchased a building structure known as Shreeji Mansion along with ground appurtenant thereto situated at 94-100, ....