AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 425
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.... brief facts leading to this case is this that the assessee initially filed its return of income on 20.11.2009 declaring total income at Rs. 97,65,659/- which was processed u/s 143(3) of the Act. Such income was declared by the assessee comprised of salary income, income from capital gain and income from other sources, which was finalized on 28.12.2011 upon determination of assessed income at Rs. 1,02,50,559/- On verification of the records, it was found by the Learned CIT that the order passed by the Learned AO was erroneous in so far as prejudicial to the interest of the revenue on the following aspect: "Whereas it is noticed that in respect of LTCG that the assessee had sold a property at Devika on 13.08.2008 for Rs. 6,00,000/-. The value of property as 01.04,1981 was determined at Rs. 7,57,800/- (Value of construction 5,01,840/- + Value of land 2,56,000/-) by a private valuer. After getting benefit of indexation, LTCG on this property was worked out at Rs. 15,89,604/-. The valuer had valued the constructed structure excluding land at Rs. 5,01,840/-. However, as per the valuation report and sale deed, the property was constructed during Portuguese regime and its written hist....
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....t. Further, earlier the case was under scrutiny and the same has been assessed by the A.O. U/s 143(3} wherein your assessee has submitted Valuation Report and on the basis of Valuation Report, he has accepted the value of the property as reported in the Valuation Report, i.e. A.O. has applied his mind while processing the Assessment Order and has accepted the value as it is. It will not be out of place if I mention that there cannot be Nil Value for any structure, since even wood, bricks, stones, any building material will have value. In my case the building may be very old but it has a value and therefore, after considering all these aspects, the Valuer has valued the property. Further, valuation of property is highly technical matter and value can be determined by the technical person, who has a knowledge of such a valuation. The same approach has been followed by your assessee and your assessee has obtained a Valuation Report from an approved Valuer, who has valued the property and the same has been adopted by your assessee while filing the Return of Income. The value of property is based on several factors and this being highly technical, can be determined by a technica....
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....sing assessment order the Assessing Officer had applied his mind on the issue under consideration and accordingly pass orders, the finding of the Learned CIT that the cost of property should be taken as Nil for calculation of the long term capital gain seems to be changed of opinion. He also placed relied on the judgment passed by the Jurisdictional High Court in the case of PCIT-vs-CLP India Pvt. Ltd. On the contrary, the Learned DR relied upon the order passed by the authorities below. 4. Heard the respective parties, perused the relevant materials available on record. The valuation report dated 30.01.2009 which is on record before us has also been duly taken care of where the date of valuation made as mentioned was of 30.01.2009. The description given in the said valuation report in respect of the property in question is as follows: "The property consisting of an N.A. land bearing plot no. 38 of village Devka in the Dist. Daman, is located on the main road from Nani Daman to Devka. it admeasures 6400.00 sq.mt. land area. The Bungalow existing on the plot is known as "HILL VIEW" bungalow, it is an old structure, traditional architectural style, built in stone, bricks and wood.....
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.... erroneous order prejudicial to the interest of the revenue. In fact, A plain reading of Section 263 of the Act suggests that the commissioner may call for and examine the records of any proceeding under this Act, and if he considers firstly that the order passed by the Assessing Officer is erroneous so far as it is prejudicial to the interest of the revenue, then he, may, upon making an enquiry after giving the assessee an opportunity of hearing can pass such order thereon as the circumstances of the case justify including an order of enhancement or modification of the order or cancellation of the assessment order and direct a fresh assessment by the Assessing officer. Therefore, the first and foremost condition is to satisfy that the order passed by the Assessing Officer is erroneous and the same is prejudicial to the interest of Revenue. In the instant case, we have gone through the order passed by the Learned CIT but we have failed to understand as to why such order passed by the Assessing Officer is erroneous. It is the law of the land that before the Commissioner exercise jurisdiction of suo moto revision he has to be satisfied about the fulfillment of twin conditions as sta....
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.... propositions. Nevertheless in the facts of the present case we are not inclined to interfere for entirely different reasons. As noted the assessee's contentions before the Assessing Officer and the Commissioner was that the recipient of the payments, the German Company had no tax liability and there was therefore no question of deducting tax at source and further that with respect to the second head of payments, the assessee company had merely corrected an error and recovered the amounts from the company. These issues were before the Assessing Officer and unless shown to the contrary can be presumed to have been considered by him while not making the additions. If the Commissioner was of the opinion that either of the two contentions were invalid in facts or law, he ought to have come to such a conclusion without holding to the contrary. He merely brushed aside the assessee's contentions observing that the Assessing Officer had not made proper inquiries. For such reasons, tax appeal is dismissed" Upon going through the records particularly the order passed by the Learned AO, we find nothing contrary to come to a conclusion that the Learned AO has not made any enquiry in t....