TaxTMI 
TaxTMI 
2022 (8) TMI 852
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....sed u/s 143(3) of the Act passed by the ld Assessing Officer, DCIT, Circle-1, Ghaziabad (hereinafter referred as the Ld. AO). 2. Facts in brief are that assessee filed its return of income on 30.11.2013 declaring income of Rs. 21,93,310/-. The case was selected for scrutiny through CASS. Accordingly, notice u/s 143(2) dated 09.09.2014 was issued. The assessee is an individual and retired from Indian Army in 1996. During the year under consideration, assessee has started a business of distributorship of Vestige Marketing Private Limited and farming on his paternal land. The assessee had also derived pension from Indian Army. During the course of assessment proceedings, it was found that assessee had sold an agricultural land at an amount ....
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....ut assessee sold this land of Rs. 96,30,000/- to M/s Omkar Nest Private Limited. This value is higher than Circle rate. Assess has paid Capital Gain on this sale consideration. The AO observed that according to sale deed, value of this land at Rs. 1,16,13,000/- was fictitious circle rate. This circle rate is not mentioned anywhere in the circle rate list issued by Office from Sub registrar Modinagar. Accordingly AO held that the asssessee had paid stamp duty at the value of Rs. 1,16,13,000/- not at Rs. 96,30,000/-, and hence the case falls within the purview of section 50C of the I.T.Act,1961. 3. The Ld. Pr. CIT issued show cause notice dated 05.03.2018 and exercised his Revisional jurisdiction u/s 263 of the Act as it found that the lan....
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....o but agricultural land and it deserve to be hold so by this Hon'ble Income Tax Appellate Tribunal. 4.1 That mere concession in the return does not amount to admission that asset is capital in nature when on facts and in law it is agricultural in nature. 5. That the Ld. Principal Commissioner of Income Tax erred in law, on facts and in surrounding circumstances in ignoring the Tehsil report as well as corresponding notification regarding distance, wherein agricultural land lying beyond 1 Km. is not capital asset, whereas the Ld. Principal Commissioner of Income Tax on wrong interpretation treated the land to be within 2 Kms. of his own. 5.1 That the conclusion and direction given by the Ld. Principal Commissioner ....
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....2) The assessee filed appeal before Ld. CIT(A) on 10-09-2015 3) Ld. CIT(A) passed the order on 24-05-2017 4) The assessee filed 2nd appeal before Hon'ble ITAT on 21-08-2017 5) Hon'ble ITAT, set-aside the matter to Ld. CIT(A) to decide afresh on merits)o 28-02-2018 6) Ld. CIT(A), NFAC has issued notice for hearing on 08-01-2021 7) Show cause notice issued by Pr. Commissioner of Income Tax to revise/setaside the assessment order u/s 263 of I.T. Act on 05-03-2018 8) Order passed by Ld. Pr. Commissioner of Income Tax u/s 263 of I.T. Act on 26-03-2018 9) The appellant, being aggrieved filed the appeal before Hon'ble ITAT on 09-05-2018 10) The Ld. A.O. revised ....
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....en considered and decided in such appeal." 12. A bare perusal of the section 263(1)(c) of the Act makes it clear that an issue can be subject matter of the Revisional jurisdiction, u/s.263 if the same is not subject matter of appeal before CIT(A). As for instance, if the AO has made additions of three heads and assessee preferred challenging only one addition then so far the remaining two issues remain unchallenged before CIT(A), only they are open for Revision u/s 263. In the judgment relied on behalf of assessee of Hon‟ble Madras High Court in the case of Smt. Renuka Philip Vs ITO [supra], Hon‟ble High Court was confronted with similar facts as the assessee in that case claimed deduction 54 which the AO ignored and gave rel....
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....263 of the Act on account of the statutory bar. Therefore, on this ground also, the assumption of jurisdiction under Section 263 of the Act was wholly erroneous." This decision of Hon‟ble Madras High court has been followed by the Hon‟ble Allahabad High Court in the case of CIT Vs Vam Resorts and Hotels (P) Ltd (supra), as relied by assessee. 12. As with regard to the case in hand the bench is of considered opinion that when the Assessee had claimed deduction which was examined by the ld AO then not only the question of quantum of deduction but also of eligibility has to be presumed to be under examination before the Ld. AO. 13. Further more, considering the grounds before the Ld CIT(A), even the question of applicabili....