TaxTMI 
TaxTMI 
2022 (7) TMI 1155
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....ievously erred in assuming jurisdiction u/s 263 of the Act, 1961. 3. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax has erred in violating the principles of natural justice by not the mentioning the grounds for initiating action u/s 263 of Income Tax Act, 1961 in the show cause notice issued. As such the order passed u/s 263 is void ab-initio. The action of the Ld. CIT was wholly unreasonable, uncalled for the bad in law. 4. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax has erred in not passing a speaking order against the submissions of your appellant. As such, the order passed u/s 263 is void ab-initio. The action of the Ld. CIT was wholly unreasonable, uncalled for the bad in law. 5. On the facts and in the circumstances of the case as well as law on the subject, that the order of u/s 263 is merely 'change in opinion'. The order u/s 143(3) passed by the Ld AO does not in any way represent erroneous order. The action of the Ld. CIT was wholly unreasonable, uncalled for and bad in law. 6. On t....
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.... revising the assessment order, the Ld. PCIT issued show cause notice to the assessee vide show cause notice dated 16.02.2018. In the show cause notice, Ld. PCIT recorded that on examination of assessment record, it was noted that the assessee has sold two immovable properties during the year under consideration, out of Block No.146, Village Palod, Taluka-Mangrol, Surat vide sale deed dated 20.05.2011 for a sale consideration at Rs.2.553 crores, wherein the assessee has 1/3rd share. And other land out of Block No.147 of same revenue village on same date for sale consideration at Rs.1.266 crores, wherein the assessee has 100% share. As per the registered documents, the assessee sold these two pieces of land to 'Surya Food and Agro Ltd'. (non farmer/ non Khedut). The Ld. PCIT was of the view that the said land was does not within the ambit of agricultural land comes under the definition of "capital asset" under section 2(14) of the Act. The Sub-Registrar office (SRO), Mangrol Surat valued the properties for the purpose of stamp valuation at Rs. 4.547 crores and Rs.2.255 crores respectively. Thus, on such transactions, Capital Gain is chargeable under section 48 r.w.s. 50C on the diff....
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....n. Since the agricultural land was situated beyond 8 km. of Municipal boundaries having population of 10,000 and therefore it is not a capital asset within the meaning of section 2(14) of Income Tax Act. The assessee also furnished the certificate of Talati Mantri of Gram Panchayat. The assessee in his reply also relied on certain case law and finally submitted that the Assessing Officer examined the fact in his reply filed during the assessment and accepted the same being legal, valid, based on law and judicial pronouncement and no revision is permissible and requested to quash the proposed proceedings under section 263 of the Act. 5. The reply of assessee was considered by Ld. PCIT, but same was not found accepted by him on account of three reasons viz; (a) assessee during the course of assessment proceedings as well as in revisional proceedings took plea that the agreement to sale was executed between him (assessee) and purchaser on 08.10.2010, but there is no such reference of agreement to sale in the registered sale deed, (b) there is enclosure in the registered sale deed in the form of resolution passed by Board of Directors by the purchaser, wherein Mr. Manoj Kumar Agarwa....
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....rder cannot be revised. The Ld. AR for the assessee further submits that assessment was re-opened to examine the transaction of transfer of land on the basis of information received from sub-registrar office Mangrol. The reasons recorded itself were on the issue of transfer of land at village Palod. On recording the reasons of re-opening notice under section 148 of the Act dated on 25.09.2014 was served upon the assessee. In response thereto, the assessee filed his return of income. The assessee in compliance of notice under section 148 filed his return of income. During the scrutiny assessment, the Assessing Officer issued notice under section 142(1) on 28.07.2015, wherein the assessee was asked to furnish copy of all bank statements, details of purchase and sale of immovable properties (land). The assessee filed his reply along with documentary evidence on 26.10.2015. Along with reply of assessee furnished copy of purchase deed of immovable properties, sale deed of the property sold during the year and submitted that assessee has sold agricultural land which situated in beyond the 8 Km from the Municipal limit having population of less than 10,000 and that same is not covered in ....
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....e Ld. AR for the assessee submits that it is a matter of fact that the Assessing Officer while passing the assessment order has not discussed the issue in details after taking all the details on record, however, that would not mean that order passed by the Assessing Officer is erroneous. The assessment order passed by assessing officer in accordance of law. The assessment order is not passed without initiating proper inquiries or is not a case of lack of enquiry. The Ld. AR for the assessee submits that if the Assessing Officer has took one of plausible view, to which ld. Commissioner does not agree, cannot be treated as erroneous order so as to exercise the jurisdictional power under section 263 unless the order /view taken by Assessing Officer is unsustainable in law. 8. The ld. AR for the assessee submits that the ratio in case law relied by Ld. PCIT in his order in Smt. Sarifabibi Mohammed Ibrahim (supra) is not applicable on the facts of the present case as the fact of said case is quite differ. In the said case the land was situated at one kilometre from Surat Railway Station, however, the land of assessee is situated outside the purview of 25 kilometre from the limit of S....
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....rib.) 10. On the other hand, Ld. CIT-DR for the Revenue supported the order of Ld. PCIT. The ld. CIT-DR for the Revenue submits that the Assessing Officer in the assessment order has not specify as to what type of enquiry was conducted and the reply furnished, if any, by assessee or not. The Assessing Officer is totally silent on the examination of the issue of capital gains. Thus, the Assessing Officer was passed assessment order without making proper enquiries, which should have been made by Assessing Officer during assessment proceedings. Since the assessment order is silent on various aspects therefore the order passed by Assessing Officer is erroneous. The Assessing Officer has not examined and verified the applicability of capital gains on the transaction of sale of land, which is undoubtly, is prejudicial to the interest of revenue. Therefore, the twin condition as enunciated in section 263 is clearly available in the present case. On the reference of various case laws the ld CIT-DR for the revenue submits that the applicability of ratio of various decision will be seen, when the assessing officer has given basic facts in the assessment order. The ld. CIT-DR for the Reven....
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....as observed that on the date of transfer/registration of both the above mentioned land, it had entitlement of 'Non-agricultural land (N/A)' as per registration deed dated21.05.201, the same mentioned at page no. 3 & 8 of the registration deduction dated 21.05.2011. The word 'non-agricultural land' has clearly been mentioned in the registration deed at page No.3 & 8 of the deed dated 21.-5.2011.Therefore,it is requested to show cause as to why above mentioned land should not be treated as Capital Asset for F.Y 2011-12. 4. On observation of the registration deduction and stamp duty paid for registration, it was observed that value of land for sale as per 4.9% of the value of the property is as follows: Sr. No. Land details Amount (Rs) Value (Rs) as per 50C Share of assessee (Rs) 1 Block no. 146, Revenue Survey No.132/4, Moje-P)alod,Sub District Taluka Mangrol, Dist. Surat 2,55,30,570/- 4,54,75,000/- 4,54,75,000/- 2 Block no 147, Revenue Survey No.132/5, Moje- Palod, Sub District Taluka Mangrol, Dist-Surat 1,26,61,155/- 2,25,52,100/- (for 3 parties) 75,17,367/- 4.1 In view of the above chart it is very clear that as per se....
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....2011 and sale deed was executed on 20.05.2011. Such permission was obtained as the purchaser in not agriculturist. 15. We find that Jurisdictional High Court in CIT Vs Madhabhai Patel [1995] 81 TAXMAN 473 (GUJ.), while considering the question of law "whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that the land in question was agricultural in character and the assessee was not liable to be taxed in respect of the surplus arising on the sale of the land in question as capital gains, held, what is required to be considered is: Was it agricultural land when it was sold? If the land is recorded as agricultural land in the revenue records and if till the date of its sale it is used and exploited as agricultural land, and if the owner of the land has not taken any step, which would indicate his intention to exploit the land thereafter as non-agricultural land, then such a piece of land will have to be regarded as agricultural even though it is included within the municipal limits or it is sold on a per square yard basis and not acreage basis. The purpose for which such a land is sold, though not relevant, will ....
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....r whether it was of a temporary character or by way of a stop-gap arrangement? 4. Whether, the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land? 5. Whether, the permission under section 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land? If so, when and by whom (the vendor or the vendee)? Whether such permission was in respect of the whole or a portion of the land? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? 6. Whether, the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such cesser and/or alternative user was of a permanent or temporary nature? 7. Whether, the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled? Whether the owner meant or intended to use it for agricultural purposes? 8. Whether, the land was situa....
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....ts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interests of the revenue' is not an expression of art and is not defined in the Act. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree....