2013 (8) TMI 1136

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....t 1961 [in short the "Act"]. 2. In the course of hearing, the assessee vehemently argues that CIT has wrongly revised the impugned assessment under section 263 of the Act by terming it as ''erroneous and prejudicial to the interest of the Revenue''. Reliance has been placed on the case laws i.e. (2000) 243 ITR 83 (SC) Malabar Investments Vs. CIT, (2007) 295 ITR 282 (SC) CIT Vs Max India Ltd, (1993) 203 ITR 108(Bom) CIT Vs Gabriel India Ltd. and (2013) 354 ITR 35 (AP) Spectra Shares and Scrips Pvt. Ltd Vs. CIT on jurisdictional aspect of the case. On merits, the assessee quotes law case (2007) 292 ITR 481 (Mad), M.S. Srinivasa Naicker and others Vs. ITO and that of Chennai 'tribunal' decision in ACIT Vs. Shri. Sherit Dyan dated 2....

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....ile that on 18.7.2012, the CIT issued notice under section 263 of the Act on the ground that the assessment finalized in assessee's case was erroneous causing prejudice to the interest of the Revenue on the following grounds:- "The assessee, Shri Arjun Parthasarathy filed the return of income for A.Y. 2009-10 on 20.10.2009 declaring a total income of H13,3,370/-. The return was processed u/s. 143(1) on 16.08.2010. The case was selected for scrutiny and the assessment was completed u/s. 143(3) on 19.12.2011 accepting the income returned. 2. From the perusal of records, it is seen that during the relevant previous year, the assessee has received sale consideration of H22,50,60,000/- on account of sale of land situated in Mad....

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....aken as the correct representation of the contemporaneous nature of the said land. 6. In view of the above facts, it is evident that on the date of sale, the land has been converted for non-agricultural purpose thereby falling within the definition of capital asset u/s2(14) and liable for capital gains tax u/s. 2(14) r.w.s.45 and 48. 7. Hence, the order u/s. 143(3) dated 19.12.2011 passed by the Assessing Officer appears to be erroneous and prejudicial to the interest of Revenue. 8. You are, therefore, requested to show cause why the assessment u/s. 143(3) of the Act should not be set aside as it is erroneous and prejudicial to the interest of revenue. In this connection, you are requested to appear before the und....

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....y to section 263 proceeding have no where been discussed in the CIT's order and the Assessing Officer had rightly treated the land to be agricultural. Without going into the technical aspect as to whether the assessee had in fact filed the paper book before the CIT or not, we take on record the same in the larger interest of justice and proceed to decide the case. 9. Coming to the facts of the case, the apparent dispute between the parties is that as per the assessee, the CIT has wrongly revised the assessment by invoking jurisdiction under section 263 of the Act after holding that the land in question had already been converted to nonagricultural use. The Revenue contests this. In this regard, the factual position that emanates from the....

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....al to the interests of the Revenue. If one of them is absent- if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue-recourse cannot be had to section 263(1) of the Act. (b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue: or where two views Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable ....

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....t cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted. (e) Whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under section 263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open ; that an assessment order made....