TaxTMI 
TaxTMI 
2021 (7) TMI 485
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....missioner of Income-tax was not justified in assuming jurisdiction u/s.263 without satisfying conditions. (2) The appellant submits that the Principal Commissioner of Income-tax ought not to have invoked provisions of section 263 on the very same point on which the Assessing Officer had made inquiry and taken position. (3) The appellant further submits that the Principal Commissioner of Income-tax did not appreciate the settled position of law where proceedings u/s.263 do not stand to sustain if Principal Commissioner of Income-tax opts to take different view in the same matter. (4) The learned Pr. CIT was driven by extraneous consideration in not dropping the proceedings u/s.263. (5) The revision fails because under the same jurisdiction, the appellant's shave (2/3) in the land is taken for revision, while on the same set of facts, the balance share (1/3) of relative of the assessee passed u/s. 143(3) is allowed to be continued to be classified as " gains". (III) Merits: (1) With the assesse indisputably being an agriculturist, selling its agricultural land as agricultural land after holding it for a period of 10 years, would n....
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....ion, the ld. Pr.CIT took his view that the assessment order passed by the assessing officer (AO) is erroneous and prejudicial to the interest of the Revenue. The ld. Pr.CIT issued a show cause notice under section 263 dated 23.03.2021 for fixing the date of hearing on 26.03.2021. The ld. Pr.CIT noted that show cause notice was served upon the assessee on 23.03.2021 and the assessee requested for adjournment for a week. The assessee was granted further time and directed to submit its reply on or before 29.03.2021 by 5.30 PM through ITBA portal. The Ld. Pr.CIT noted that assessee submitted his reply on ITBA Portal. The reply was not uploaded in a proper format, thus, the same could not be opened. Therefore, the Ld. Pr.CIT issued another notice on the same date 29.03.2021 for furnishing reply in a proper format either on ITBA portal or through Email by 30.03.2021 up to 7 PM. The ld. Pr.CIT noted that the assessee has neither uploaded reply on ITBA portal nor sent through Email. The Ld. Pr. CIT, thereafter proceeded to consider the material available before him. The Ld. Pr.CIT on the basis of material available before him noted that in assessment year 2013-14, 2014-15 to 2018-19, the a....
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.... deed and decision of certain case laws. 6. In support of various grounds of appeal raised by the assessee, the ld.AR of the assessee submits that he has three fold submissions. Firstly on the validity of order passed in violation of principle of natural justice, secondly, on technicality about validity of assumption of jurisdiction and thirdly on merit. The ld.AR on his first set of submission in validity of assessment order submits that show cause notice issued by the ld. Pr.CIT only 23.03.2021 it was issued almost fag end of period of limitation for revising assessment order. The maximum time limit for revising the assessment order was expiring on 31.03.2021. The assessee received on 26.03.2021 at 3.45 PM. The notice was handed over to authorised representative on 27.03.2021. 27th March 2021 was Saturday. The AR for the assessee vide application dated 27th March 2021 sought adjournment for a week. Next day was 28.03.2021 being Sunday. The ld. Pr.CIT pleased to grant the adjournment for two days and fixed the case on 29.03.2021. 29.03.2021 was a Holiday on account Colour Day of Holi festival. Further, 30.03.221 was the next working day. The assessee was allowed time up to 5.00....
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....ssee sold agricultural land wherein the assessee was having 2/3rd share. The 1/3rd share was owned by Ramesh Purusottambhai Patel. In Ramesh Purusottambhai Patel the assessment was completed under section 143(3) and similar transaction was accepted by the AO in allowing capital gain. Copy of assessment order is placed on record. At the time of assuming jurisdiction under section 263 of the Act with regard to 2/3rd share of land as adventure in nature, the ld. Pr.CIT was mindful of the fact that balance 1/3rd piece of land was added as a capital gain, consciously no revision is proposed in case of Ramesh Purusottambhai Patel. The ld.AR for the assessee submits that assessee cannot be treated indifferently than of his co-owner, thus, the proposed revision itself in self-conflicting in its approach and required to be quashed. The ld.AR further submits that during the assessment, the ld.AO made requisite enquiry about the purchase of land, sale of land, evidence of agricultural activities, details of crops, head wise agricultural expenses, details of sale proceed of agricultural product along with extract of Form 7/12 (land record). The assessee furnished the complete details to the....
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....nu Madhav in ITA No.1698/AHD/2012 and • Pune Tribunal in Ashok Motilal Kataria 308-ITR(A.T.)-298. 9. On the other hand, the ld. CIT-DR supported the order of ld. Pr.CIT. the ld PCIT in para -5 of his order clearly held that the assessee is frequently dealing in sale and purchase of land in a organised activity. The ld. Pr.CIT submits that the assessment order is silent about the queries raised by the AO. The ld. CIT-DR for the revenue further submits that AO allowed the deduction of capital gain under section 45 on purchase of another capital gain to the assessee without examining the nature of land transferred by the assessee. Though, the land transferred by the assessee was asset but not agriculture land for the purpose of claiming exemption under section 54B of the Act. The AO , while passing the assessment order has not applied his mind. 10. On the contention of ld.AR that assessee was not granted fair and proper hearing, the ld. CIT-DR for the revenue submits that the assessee was given liberty to furnish the reply. The assessee instead of filing reply sought adjournment for one week. The one week adjournment was not at all possible as the time period for pa....
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....ollowing frequently occurring factors: sale of land for housing purpose; obtaining permission to sell the land for non-agriculture purpose; absence of cultivation prior to sale, absence of intention to cultivate land in future, location of land within in municipal area, the nature of the surrounding area; the price at which the land was sold within the municipal area and entry in municipal record. All these factors were not considered by the AO while passing the assessment order. 13. The Hon'ble Supreme Court in a well known leading case in Malabar Industrial Co. Ltd. v. CIT [2000] (243 ITR 832 SC) held that by reading of section 263 of the Income-tax Act, makes it clear that the prerequisite for the exercise of the jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous insofar as it is prejudicial to the interests of the revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial 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 prejudic....