TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 893
X X X X Extracts X X X X
X X X X Extracts X X X X
....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/s. 263 as noted by the Ld.CIT reads as under:- It was noticed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sment 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 completion of 263 and other proceedings were extended from 31.03.2020 to 31.03.2021 by refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eated 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 Gain of Rs. 5,40,860/-. The Short Term Capital Gain on the sale of flat on 22.06.2009 has been calculated by reducing the purchase cost of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tention 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 there is Short assessment of Short Term Capital Gain to the tune of Rs. 11,74,000/-. Therefore, assessment order u.s 143(3) r.w.s. 147 of the IT Act dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 contra, Ld. DR relied upon the orders of the Ld.CIT. Upon careful consideration, we note that the first objection of the assessee that notice u/s. 263 is beyond time is not sustainable in view of the f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....C 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 the AO, which includes all the provisions of section 50C in the statute books. 12. It is further noted that the Ld.CIT has referred to amendment brought in Explanation 2 of section 263. However, we note t....