TaxTMI 
TaxTMI 
2019 (12) TMI 448
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....263 of the Act, thereby revising the concluded assessment. The facts in brief are that case of the assessee was picked up for scrutiny assessment under the CASS and assessment was framed u/s 143(3) of the Income Tax Act, 1961 (hereinafter called as 'the Act') vide order dated 20.12.2016. The A.O. while framing the assessment made addition of Rs. 9,57,454/- on account of surrender by the assessee its claim of exemption u/s 10(38) of the Act. Subsequently, Ld. Pr. CIT issued a notice u/s 263 of the Act dated 18.7.2018 calling upon the assessee as to why the assessment should not be revised. The basis of the issue of notice as stated in the impugned order was that as per the information available on records, it was noted that the assessee had claimed exemption u/s 10(38) of the Act. The A.O. only disallowed the exemption claimed u/s 10(38) of the Act but did not treat income from other sources as undisclosed income u/s 68 of the Act and chargeable to tax u/s 115BBE of the Act. It was observed by the Ld. CIT that the A.O. ought to have investigated and examined this aspect before making the assessment and no enquiry about the company whose shares have been purchased and sold, no invest....
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.... appeal.) 7. No show-cause notice u/s 263 was issued for penalty proceeding u/s 271(1)(c) of the Act but specific finding regarding dropping of penalty proceeding u/s 271(1)(c) has been made in para no. 3 and 4 of the order. No such action is permissible u/s 263 of the Act. 8. That the long-term capital gain u/s 10 (38) of the Act on shares of Turbo Tech Engineering was held to be genuine in the following cases. a. Ms. Asha Luthra vs. ITO in ITA No. 0483/Del/2017 (copy enclosed on page no. 1 to 23). b. Smt. Shikha Dhawan vs. ITO in ITA No. 3035/Del/2018 (copy enclosed on page no. 24 to 39). c. Lalit Kumar Aggarwal vs. ACIT In ITA No. 3509/Del;/2018. (copy enclosed on page no. 40 to 52). It submitted that it is settled law that section 263 cannot be invoked on account that the view of A.O. is different from that of Principal CIT . The Assessing Officer has taken a view which may be different from the view of the Id. Commissioner and assuming that the view taken by the Assessing Officer is a loss to the revenue, but the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. 243 ....
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.... "6. It can thus be seen that though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim of deduction under section 54F of the Act in the context of fulfilling conditions contained therein and may possibly have no relevance to the question whether the sale of land gave rise to a long term capital gain. Looking to the tenor of queries by the Assessing Office and details supplied by the assessee, we are unable to accept such a condition. In that view of the matter, the observation of the Tribunal that the Assessing Officer having made inquiries and when two views are possible, revisional powers could not be exercised, called for no interference. Since with respect to computation and assertions of other aspects of deduction under section 54F of the Act, the Tribunal has remanded the proceedings, nothing stated in this order would affect either side in considerations of such claim. No question of law....
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.... under:- Suffice to say that these findings, whatever be their worth and legal sustainability, cannot be reason enough to hold that the assessment for other assessment years, in which these detailed investigations- which are surely more of an exception rather than rule, were not carried out, are required to be treated as erroneous and prejudicial to the interest of the revenue. There is, however, nothing more than these findings for the assessment years 2011-12 which are foundational for the impugned revision order. In any case, as held by Hon'ble jurisdictional High Court, in the case of CIT Vs Amit Corp [(2012) 21 taxmann.64 (Guj)], "YVhen, during the course of framing of the assessment, the Assessing Officer had access to all the records of the assessee, after pursuing such record the Assessing Officer framed the assessment, such assessment could not have been reopened in exercise of revision power under Section 263 of the Act for making further inquiries". That precisely is the situation before us. As regards the decision of the coordinate bench relied upon by the learned Departmental Representative, i.e. in the case of Crompton Greaves Ltd Vs CIT [ITA Nos. 1994/Mu....
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....he decision of the coordinate bench rendered in the case of Miss Asha Luthra Vs. ITO in ITA No.6483/Del/2017 dated 28.6.2019. The Ld. Counsel for the assessee placed reliance on the decision of SMC Bench of the Tribunal in ITA No.3835/Del/2018. Ld. Counsel also placed reliance on the judgement of the Hon'ble Supreme Court rendered in the case of Malabar Industrial Company Ltd. Vs. CIT. In support of this written synopsis and submissions made at bar, Ld. D.R. opposed these submissions and supported the order of the Ld. Pr. CIT. Ld. CIT(DR) vehemently argued that the A.O. has not made any enquiry regarding the companies of which the shares were transacted and also the broker. 5. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. Ld. Counsel for the assessee vehemently argued that exercise of powers u/s 263 of the Act by the Ld. Pr. CIT is undisputed, illegal and contrary to the settled principles of law. In the present case, undisputed fact remains that the assessee had claimed exemption u/s 10(38) of the Act. It is stated that during the assessment proceedings, claim of exemption was withdrawn a....
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....rovisions of section 263 of the Act. We have given our thoughtful consideration to the facts of the case. 9. The Hon'ble Delhi High Court in the case of ITO Vs. DG Housing Projects Ltd. (2012) 20 Taxmann.com 587 (Delhi) has examined the law on the issue of initiation of proceedings u/s 263 of the Act. The Hon'ble High Court observed in paras 17 & 18 as under: "17. This distinction must be kept in mind by the CIT while exercising jurisdiction under Section 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissibl....