TaxTMI 
TaxTMI 
2018 (2) TMI 1150
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.... and circumstances of the case, Ld. Pr. Cit has erred in law an on facts in assuming jurisdiction u/s 263 and further erred in holding the assessment order dated 7/12/2015 erroneous in so far as it is prejudicial to the interest of revenue. 2. That in any case and in any8 view of the matter, action of Ld. Pr. CIT in assuming jurisdiction u/s 263 and passing the impugned order under this section is bad in law and against these facts and circumstances of the case. 3. That having regard to facts and circumstances of the case, Ld. Pr. CIT has erred in law and on facts in holding that appellant is liable to be taxed on capital gain on the transfer of subject agricultural land by holding the same as 'capital asset.' 4. ....
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....order passed u/s 263 of the Act and brief written submissions filed by him and relied upon explanation 2 to section 263 of the Act reported in 243 ITR 83 and the decision in the case of Surya Jyoti Software, ITAT Delhi. 5. Before we consider the submissions made by both the sides, it is mentioned that assessee earned capital gain of Rs. 10,72,76,180/- on sale of agricultural land claimed to be beyond prescribed units of Sohna which claim was accepted in assessment by the Assessing Officer after considering the reply and evidences filed. The ld. CIT passed impugned order u/s 263 of the Act on 21.02.2017 by rejecting the objections of the assessee and by holding that the capital gain was taxable. 6. We have considered the rival argument....
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.... assessee filed purchase deed of this land which is at pages 56 to 62 of the paper book and at page 56 it is specifically mentioned 'Kisan -Chahi [Krishi Bhoomi]. Assessee also filed copy of sale deed which is at page 78 to 87 which also mentions the type of land as agricultural land and 'Chahi'. Copy of certificate from Tehsildar was also placed certifying the distance from the municipality. Paper book page 108 to 110 also copy of Jamabandi which show the subject land as Chahi [irrigated]. Thus, it is evident that during the course of assessment proceedings issue about the taxability of capital gain was considered in assessment and a view was taken by the Assessing Officer as to the non taxability of such gain. Therefore, when the claim of....
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....e in accordance with law and the order passed u/s 263, thus is bad. Moreover, it is seen that the ld. CIT in first 15 pages of the order has mentioned about the show cause notices, replies given on behalf of the assessee and then in paras 18 to 20 of the order u/s 263, CIT held that the objections raised by the assessee as regards the invocation of section 263 of the Act are not tenable. There is no finding recorded by the ld. CIT(A) after the receipt of the replies from the assessee that the assessment order was erroneous and prejudicial to the interest of the revenue. Therefore, absence of such finding is also fatal to the validity of the order u/s 263 and we are fortified by Guwahati High Court decision in the case of Smt. Lila Choudhary....