TaxTMI 
TaxTMI 
2022 (3) TMI 1024
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....r, because of COVID-19 pandemic and ill health of the assessee, the appeal could not be filed in time. The delay may kindly be condoned. 5. The order passed by the Ld. CIT be quashed." 3. At the start of hearing, the Ld. AR submitted that the present appeal is delayed by 182 days and therefore the assessee has filed an application, supported by an affidavit, praying for condonation of delay. The reasons of delay, as submitted by the assessee, are two-folds, viz. (i) ill-health of assessee and (ii) Covid-19 pandemic, due to which the assessee could not deliver the order appealed against to his counsel in time. Regarding illhealth, it is the submission of assessee that he had been suffering from diabetics, high blood pressure and kidney impairment for over 25 years. In support, the assessee has also placed on record, a medical certificate issued by Shreya Clinic. Regarding Covid-19 pandemic, it is the submission of assessee that the Hon'ble Supreme Court has, in Suo Motu Writ Petition (C) No. 3 of 2020 read with Misc. Applications, granted suo motu extension of the limitation-period for filing of appeals w.e.f. 15.03.2020 under all laws. Since the present appeal was due to be file....
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.... u/s 263 of the Act on 25.03.2021 and set aside the order of assessment. Aggrieved by this revision-order of Ld. PCIT, the assessee has filed present appeal and now before us. 7. Submissions of Ld. A/R: 7.1 Before us, the Ld. AR submitted that the crux of various grounds raised by the assesse is that the revision-order passed by Ld. PCIT u/s 263 is bad in law, illegal and deserves to be quashed since the same has been passed even when the order of assessment is neither erroneous nor prejudicial to the interest of revenue. The Ld. AR, therefore, instantly carried our attention to following paras of the revision-order where the Ld. PCIT has observed: "4. On perusal of the assessment order and related records, it is observed that the assessing officer did not enquire into the issue stated in SCN which should have been made during the assessment proceedings. It is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to complete the assessment as per law. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word 'erroneous' includes failure to make the enquiry. In such cases, the order becomes err....
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....er section 263 to direct fresh assessment. In view of the detailed reasons given and discussions made herein above, the assessment order u/s 143(3) dated 29.09.2017 made by the DCIT-4(1), Bhopal for the A.Y.2015-16 is hereby set aside u/s 263 with the direction to the AO to make it de novo after proper examination, inquiry and verification on all aspects, after giving reasonable opportunity to the assessee of being heard and after bringing on records the relevant supporting material and evidences in support of the action of the AO." Analysing these paras, the Ld. AR submitted that the Ld. PCIT has conducted revision on the premise that the Ld. AO did not enquire into the issue that the profit on sale of plots declared by the assessee was a business income. Thus, the revision has been done on the ground of lack of enquiry, applying Explanation 2 to section 263(1) of the Act. Thereafter the Ld. A/R carried our attention to following paras of the assessment-order, passed by Ld. AO: "2. ln response to the above notices, Shri Nasiruddin, Advocate & Authorized representative attended the hearings from time to time and filed written submissions which are placed on record. The written....
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....d 42 developed plots to the assessee during the financial year 2013-14. Out of those 42 plots, the assessee sold a few plots during the financial year 2013-14 relevant to immediately preceding assessment-year 2014-15, 11 plots during the financial year 2014-15 relevant to the assessment year 2015-16 under consideration and the balance plots remained unsold as on 31.03.2015. The Ld. A/R submitted that these facts clearly demonstrate that the assessee had purchased lands of 10.41 acres long back in the year 1994-95 and 2001-02 and since then held the same as capital asset only. It is Bhopal Development Authority which acquired those lands under the statutory rules, the assessee did not step to sell. The Ld. AR further submitted that 42 developed plots is merely an allotment by Bhopal Development Authority against 10.41 acres of lands held as capital asset by the assessee and it is after such allotment that the assessee had to sell those plots from time to time as and when suitable buyers were available. But this is a fact that the assessee is not engaged in real estate or plotting activity at all. The Ld. A/R submitted that in such a circumstance how can it be inferred that there was....
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....Ld. DR submitted that the Ld. AO has, although perused the documents submitted by the assessee yet not enquired into the issue whether the profit on sale of plots was actually in the nature of capital gain or adventure in the nature of trade. In the course of arguments, the Ld. DR read out the following provision contained in Explanation 2 to Section 263(1) of the Act: "For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of revenue, if, in the opinion of the Principal Commissioner or Commissioner - (a) the order is passed without making inquiries or verification which should have been made:" Arguing forcefully, the Ld. DR submitted that the words used in this provision are "in the opinion of" and not "being satisfied". Therefore, once the Ld. PCIT is of the opinion that the assessment-order has been passed without making enquiries or verification, he is justified to invoke section 263. 8.2 Finally, the Ld. D/R placed heavy reliance on the order of Ld. PCIT and submitted that the Ld. PCIT has rightly invoked section 263 and therefore the revision-or....