TaxTMI 
TaxTMI 
2022 (1) TMI 893
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.... as the first show - cause notice was issued on 10th July. 2020 which in view of the reassessment order dated 12/10/2017 was due to be issued latest by 31st March, 2020. (2) On the facts & circumstances & in law the learned CIT- IT, Mumbai-4 [CIT] erred in passing the impugned revision order without appreciating that the original reassessment proceeding was taken place on the very same facts and therefore, the reassessment was neither erroneous nor prejudicial to the interest of revenue within the meaning of section 263 of the Act. (3) On the facts & circumstances it is humbly prayed that the impugned revision order u/s. 263 of the Act may be quashed & oblige. 3. Brief facts of the case leading to the issue of notice u/....
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....shown by the assessee in the return of income. 3. During the course of assessment proceedings, the AO never examined this issue of application of section 50C nor any query was raised with reference to the same. The AO simply accepted the net taxable income declared by the assessee in its return in response to notice u/s 148 and also accepted calculation of Short Term Capital Gains at Rs. 5,40,860/-. The AO should have assessed the Short Term Capital Gains at Rs. 17,14,860/- instead of Rs. 5,40,860/- as declared by the assessee. Therefore, the assessment order of the AO was not as per provisions of section 50C of the IT Act. 4. Before issuing the notice Ld.CIT also noted that due to the COVID pandemic time barring dates for compl....
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....of all above grounds, we request you to drop proceedings under section 263 of the Act." 5. But, Ld.CIT was not convinced, he repeated his observation that time limit for issue of notice u/s. 263 stood duly extended. As regards, the merits of the objection, he held as under:- As stated in earlier paras that during the F.Y 2009-10 (wrongly mentioned as FY 2010-11 in the notice u/s 263 of the I.T Act), the assessee has sold an immovable property for consideration of Rs. 36 Lakhs. The assessee had not filed its return of income and it was only in response to the notice u/s 148 of the I.T Act that the assessee filed its return of income for AY 2010-11 declaring net taxable income at Rs. 35,44, 960/- which included Short Term Capital ....
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....ut of more than one view possible (by the Assessing Officer) but here the Assessing Officer has failed to make a view and passively accepted the contention put forward by the assesses as is evident from the assessment records. Thus, in the facts and circumstances of the case, the then Assessing Officer has failed to gather the complete facts of the case and to correctly apply the law while making the assessment and has resultantly passed an erroneous order which is also prejudicial to the interest of revenue. In view of the facts and legal positions stated above it is clear that the Short Term Capital Gains of the assessee should have been worked out at Rs. 17,14,860/- instead of Rs. 5,40,860/- as declared by the assessee and thus ....
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.... under section 50C. 3) Alternatively, Assessee further requests your honor to refer the valuation of Sale Consideration of flat under dispute to departmental valuer. This flat Was under distress sale & property market was under recession. Moreover, occupation Certificate (O.C.) was not given to the Society at the time of Sale of Property. Therefore, this property could not fetch proper value. The occupation certificate was issued on 11 July 2011 the copy of which is enclosed. If O.C. is not given by Municipal Corporation, the value of property is reduced as per trend of property market in Mumbai. In view of all above grounds, we request you to drop the proceedings under section 263 of the Act. 10. Per ....
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.... invoking the provision of section 50C, certainly makes the order of AO being erroneous. Hence, invocation of the provision of section 263 of the Ld.CIT is quiet correct. However, we note that section 50C duly provides that ,if the assessee is not satisfied with the valuation done by Stamp valuation authority, he can object to the same to the AO and in that case AO shall refer this matter to the DVO. This aspect was mentioned by the assessee before the Ld.CIT. We note that Ld.CIT has directed the AO to examine the issue afresh keeping his observations in the earlier part of the order. We note that when the matter is being remitted to the file of AO to decide afresh as per law, all the provisions of the law has to be taken into account by th....