TaxTMI 
TaxTMI 
2021 (11) TMI 711
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the following questions of law :- "(i) Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal erred in holding that the order of Pr.CIT dated 28.3.2016 passed u/s. 263 is not erroneous as well as prejudicial to the interest of revenue ? (ii) Whether on the facts and in the circumstances of the case and in law, the order passed by the Hon'ble Tribunal is perverse and not supported by the order passed by the AO u/s. 143(3) with regard to the inquiry made by the AO in respect of the capital gain ? (iii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal failed to consider the principle of the preponderance of probability surroun....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in which the seller of land, within 2 months, sold the land for a price 1335% higher than the purchase price. According to Principal Commissioner, the AO simply accepted the transaction as genuine on the basis of papers filed in the course of assessment and therefore, failure on the part of AO to examine the unusual transaction from the point of view of genuineness, rendered the order erroneous and prejudicial to the interest of Revenue. Based on this opinion that the Principal Commissioner had formed, a show-cause notice dated 15/03/2015 was issued calling upon Respondent to show cause as to why the order dated 26/02/2014 should not revised and gain shown as exempt LTCG be taxed as unexplained cash credit under Section 68 of the Act. Resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e order passed by Principal Commissioner. 5. Both Mr. Suresh Kumar and Mr. Agrawal, in unison, stated that the fact that the land was situated beyond 8 kms from local limits of any Municipality or any Cantonment Board referred in the proviso to Section 2(1A) and Section 2(14) of the Act is not disputed. The definition of 'Capital Asset' under Section 2(14) of the Act that was prevalent during the AY 2011-12 read as under : "(14) ["capital asset means--- (a) property of any kind held by an assessee, whether or not connected with his business or profession; ..... but does not include--- ..... [(iii) agricultural land in India, not being land situate--- (a) in any area w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of 'Capital Assets'. 7. When it is not disputed that the land concerned would not fall under the definition of capital asset, the question of any capital gains arising also will not arise. Moreover, we also find that the ITAT has come to a factual finding that the AO has raised queries with regard to the claim of capital gain on transfer of land, Respondent vide its reply dated 31/01/2014 furnished the details in respect of distance of agricultural land from municipal limits, record of population as per last census and the AO after considering the reply of Respondent, accepted the claim of Respondent. The ITAT has given a finding that the claim of capital gain was accepted by AO after necessary inquiry and the order under Section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udice has been caused to the interests of the Revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. We find that the expressions "erroneous", "erroneous assessment" and "erroneous judgment" have been defined in Black's Law Dictionary. According to the definition, "erroneous" means "involving error; deviating from the law". "Erroneous assessment" refers to an assessment that deviates from the law and is, therefore, invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the Assessing Officer in fixing the amount of valuation of the property. Similarly, "erroneous judgment" means "one rendered according to course and practice of court, but contrar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to the interests of the Revenue, then also the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be the subject-matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that t....