TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1029
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....th the parties, we find that the reasons stated by the assessee are bonafide which really prevented the assessee to file the present appeal in time. Therefore, the delay of 86 days are condoned. 3. The ld. AR submits that the assessee raised two sets of additional ground as 1 and 2 and prayed to take up additional ground No. 2 filed vide letter dated 03-09-2020 and pleaded to ignore the main grounds of appeal forming part of Form No. 36 and additional ground No. 1. On perusal of record and upon hearing, with the consent of both the parties, we proceed to take up additional ground No. 2 as preliminary issue and since it is a legal ground which does not require examination of new facts in the facts and circumstances of the case. 4. The addi....
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....nd other than the ground of revision as set out in the show cause notice, could be held to be sustainable in law. He argued that the Tribunal by placing reliance on the decision of the co-ordinate Bench in the case of Maxpak Investments Ltd., which in turn, by placing reliance in the case of G.K. Kabra reported in 211 ITR 336 (A.P.) held that if the ground of revision is not mentioned in the show cause notice issued u/s 263, that ground cannot be made the basis of the order passed under such section for the simple reason that the assessee would have had no opportunity to meet the point. The ld. AR also submits that the Revenue did not prefer any appeal against the order of Mumbai Tribunal in the cases of Synergy Entrepreneur Solutions (P) L....
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....019 by the Hon'ble High Court and referred to Page No. 46 of the paper book. 9. The ld. DR, Shri Naveen Gupta submits that a show cause notice was issued on the issue involved and opportunity of hearing was given to the assessee. The issue involved in the show cause notice was to treat the profit on sale of land as income from business in place of Capital Gains considered in the assessment order and opportunity to explain the same was given to the assessee. The ld. Pr. CIT in the impugned order u/s. 263 of the Act, after examining the assessment records as well as the submission of the appellant, the assessment order was found erroneous on this issue as the same was decided without application of mind and without making proper enquiries an....
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.... business activity. Further, in para 4, he held that the assessee sold all 47 plots in bulk to M/s. Maitriya Ploters &Structures Pvt. Ltd. that all the activities performed by the assessee along with the joint holder who had the intention to earn profit. Therefore, it transpires from the impugned order that the PCIT opined that the AO should have taxed the assessee under business income but not under LTCG, that is being so, we note that, the PCIT having no definite finding on how the order of the A.O is illegal attracting the revision u/Sec 263, simply, directed the AO to frame assessment de novo. Fact remains admitted, that the PCIT travelled beyond the show cause notice i.e. without giving any definite finding by recording cogent reasons ....
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....eliance in the case of G.K. Kabra (supra) of the Hon'ble High Court of Andhra Pradesh. Coming to the present case as already discussed above that the PCIT had come to the conclusion on perusal of the assessment record that the A.O. has not examined the issue related to long term capital gain vide para 2 of the impugned order and directed the A.O. to frame the assessment de novo vide para 8 of the impugned order. Therefore, it is clear that the PCIT shifted the stand on whether it was a case for revision on the ground of non-examination in respect of long term capital gain or the A.O. did not make necessary verification about the long term capital gain. Further it was brought to our notice that the respondent revenue did not prefer an appeal....
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....the submissions of Sri Naveen Gupta, Ld CIT-DR with reference to the decision of Hon'ble Supreme Court in the case of Amitabh Bachan supra, wherein, we note that the Hon'ble Supreme Court was pleased to hold that the PCIT is well within the jurisdiction u/s. 263 of the Act to raise an issue which is not raised in the show cause notice, but, subject to providing an opportunity to the assessee on the issue which is not part of show cause notice. The Ld. CIT-DR argued that in the present case, the PCIT raised a point in the show cause notice to treat the profit on sale of land as income from business in the place of Capital Gains and the only difference in place of giving directions to the AO to make assessment in a particular manner held that....