TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 1984
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to assessment year 2009-10. In ITA No. 5129/M/2012, the assessee has raised the following grounds of appeal: 1. BREACH OF THE PRINCIPLES OF NATURE JUSTICE 1.1. The learned Commissioner of Income-tax -19, Mumbai ["ld.CIT"] erred in framing the revision order u/s. 263 of the Income - tax Act, 1961 ["the Act"] by not giving proper, sufficient and effective opportunity of being heard to the Appellant. 1.2. It is submitted that in the facts and the circumstances of the case, and in law, the order is required to be held as bad and illegal in breach of the principles of natural justice. 2. REVISION ILLEGAL 2.1 The Ld. CIT erred in revising the assessment order passed by the A.O., by invoking the provisions of section 263 of the Act. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ount of working the LTCG. Subsequently, the assessment order was revised by ld. CIT-19. The ld. CIT-19 vide its order dated 23.07.2012 and set-aside the order passed under section 143(3) dated 26.12.2011. While setting aside the assessment order , the AO was directed to make further enquiry and pass the afresh, after making enquiry with regard to Fair Market Value of the asset received or to be received in exchange of consideration and recalculate the LTCG. Thus, aggrieved by the order of ld. CIT-19, the assessee has filed the present appeal before us. 3. We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g. The AO rework the capital gain on sale of development right. The assessee specifically contended that the AO has taken one of the possible views during the course of assessment. Mere fact that adopting some other alternative method could fetch more revenue would not render the assessment order erroneous. Every order which is passed on a possible view cannot be termed as prejudicial to the interest of revenue. 4. It was further submitted that even if the order is prejudicial to the interest of revenue, no revision is possible, if the order is not erroneous, revision cannot be invoked to correct each and every type of mistake. In support of his submission reliance is made on the decision of Hon'ble Apex Court in Malabar Industrial Co. Ltd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R 167 (Del)], CIT vs. Anil Kumar Sharma [(2011) 335 ITR 83 (Del)], CIT vs. New Delhi Television Ltd. [(2014) 360 ITR 44 (Del)]. 7. In other alternative submission, it was argued that against the addition made in the assessment order, the assessee filed appeal before the ld. CIT(A) and the ld. CIT was precluded from revising the assessment order on the issues which were subject matter of appeal pending before the ld. CIT(A). On the contrary, the ld. DR for the Revenue supported the order of ld. CIT. 8. We have considered the rival submission of the parties and have gone through the orders of authorities below. We have noted that the assessment order passed by AO on 26.12.2011 under section 143(3). While passing the assessment order, the AO....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., wherein the appellate Commissioner has a power to confirm, reduce, enhance or annul the assessment order. 9. Even on other alternative argument, we may note that the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. vs. CIT (supra) held that where two view was possible and the AO has taken one view. The order of ld. CIT revising order in such circumstances cannot be treated as order erroneous or prejudicial to the interest of Revenue. In view of the above, we accept the appeal of the assessee and set-aside the impugned order passed by ld. CIT under section 263 dated 23.12.2012. 10. In the result the appeal of the assessee is allowed. ITA No. 1435/Mum/2014 11. The perusal of record reveals that the present appeal is filed after 292....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onsidering the contents of affidavit, the submission of ld. AR of the assessee, we find that assessee explained his bonafidies in not filing the appeal within prescribed period of limitation. Our view is also supported by the decision of Hon'ble Supreme Court in Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi AIR 1979 SC 1666, has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of adjudication on me....