TaxTMI 
TaxTMI 
2022 (11) TMI 240
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....g therein that no valid notice was served upon them. The Tribunal allowed this application and recalled its order dt. 22/11/2019, vide order dt. 10/02/2021. The Tribunal has restored the appeal to its original number. 3. As far as the condonation of delay part is concerned, it is pertinent to note that the impugned order of the ld. CIT dt. 26/03/0214 was not communicated to the assessee for almost 11 months. It was served upon the assessee on 20/02/2015. Thereafter, the assessee was not keeping good health. Medical record has been placed on record along with his affidavit for explaining the delay of 14 days in filing of the appeal. 4. With the assistance of the ld. Representatives, we have gone through all the details and are satisfied that the assessee was prohibited by plausible reason for not filing the appeal before the Tribunal within the period of limitation and, therefore, we condone the delay of 14 days and proceed to decide this appeal on merits. 5. The brief facts of the case are that the assessee has filed his return of income on 11/03/2008 declaring total income of Rs.4,50,760/-. This return was processed u/s 143(1) of the Act on 23/02/2009. The Assessing Offic....
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....nt order u/s 147/143(3) of the Act on 22/12/2011. At this stage, we deem it proper to take note of the brief finding on the issue which will be relevant for the present appeal. Therefore, we reproduce the finding of the Assessing Officer on that issue which reads as follows:- "Land at 30E, Hara Mohan Ghosh Lane, P.S. Beliaghata, Kolkata-700085 purchased on 22.11.2004 in the name of the assessee and his wife Smt, Sandhya Das at a consideration of Rs.15,00,000/- plus expenditure in the nature of stamp duty, registration fees of Rs.1,69,018/-. The said land was given in the possession of M/s.Vidya Promoters (P) Ltd. for development and construction of flat for sale to the interested parties. In this respect an agreement was made on 05.08.2005 in which if was agreed upon as follows: - "The profit and losses shall be shared by the parties according to their/its respective shares in, the property i.e. 2/3rd by M/s. Vidya Promofers (P) Ltd. And 1/3rd by Smt. Sandhyà Das and Shri Sukumar Das or 2500 sq. f#. flat area more or less to each". On completion of construction M/s. Vidya Promoters (P) Ltd. had given two flats of 1250 sq. ft. each to the assessee o....
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....t order for a limited purpose that the issue regarding escapement of short term capital gain of Rs.13,99,866/- was not considered by the Assessing Officer. It deserves to be considered. We take note the brief finding recorded by the ld. CIT on this aspect in the impugned order:- "I have carefully considered the submissions made for the assessee and also the records available. Considering the facts and circumstances of the case, it would be appropriate if the issue of short term capital gain of Rs. 13,99,866/- is restored back to the file of the A.0. for fresh and proper adjudication and accordingly taking action as per law. As such, the assessment order dated 22. 12.201 1 for Assessment Year 2007-2008 is set aside u/s.26 as being erroneous in so far as it is prejudicial to the interest of the revenue as because the short term capital gain of Rs. 13,99,866/- was not considered in the assessment order. The assessing officer is directed to adjudicate the matter afresh after giving due opportunity of being heard to the assessee. The adjudication should be limited only on the issue of Short Term Capital Gain after giving the assessee the opportunity of being heard." 10. In r....
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....under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period durin....
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....ue. Both the conditions must be fulfilled. (ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous. (iv) If the order is passed without application of mind, such order will fall under the category of erroneous order. (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law. (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. ....
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....om the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry". If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of inquiry", that such a course of action would be open". 15. In the case of Gee Vee Enterprise vs. Commissioner of Income Tax reported in 99 ITR page 375, the Hon'ble court has expounded the approach of ld. Assessing Officer while passing assessment order. The observation of the Hon'ble court on pages 386 of journal read as under:- "... it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of the Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by....
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....e fact as to how the notice issued u/s 148 of the Act, upon the assessee was not valid. Probably, this is a subject matter of writ petition also before the Hon'ble Calcutta High Court and in a proceeding u/s 263 of the Act, this issue might have not been raised by the assessee but before us, though the assessee has raised it as an additional Ground, in Ground Nos. 1, 2 & 3 but did not place the material on record to demonstrate as to how the notice u/s 148 of the Act and the person who has recorded the reasons are different. We have taken cognizance of the reasons which are available on page no. 19 of the paper book extracted (supra). The reasons are recorded by ITO, Ward-14(1), Kolkata whereas, the assessment order is also passed by ITO, Ward-14(1), Kolkata. Such details are available on the last page of the assessment order passed u/s 147/143(3) of the Act. It appears that the assessee is pointing out the copy of the notice issued u/s 148 of the Act. It is under the seal of Shri M.P. Kharwar, Income Tax Officer, Ward-14(1), Kolkata. To our mind, the assessee has failed to appreciate that there may be concurrent jurisdiction of a ward with more than two Income Tax Officers. In all....
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....reement for development and construction of flats for sale to the interested party on this land. This agreement was entered into with M/s. Vidya Promoters Pvt. Ltd. Out of the developed property, 2/3rd share will be of M/s. Vidya Promoters and 1/3rd share would be of assessee and his wife. In other words, the assessee and his wife were entitled for 2500 sq.ft. of area. The assessee was entitled for 1225 sq.ft. According to the Assessing Officer, the flats were sold @ Rs.12,50,000/- & Rs. 12,00,000/-. In other words, this 2500 sq.ft. area was sold at Rs.24,50,000/-. The Assessing Officer replaced this full sale consideration with deemed sale consideration contemplated u/s 50C of the Act i.e., the amount equivalent to the sum for which stamp duty was paid and this sum was taken at Rs.48,02,500/-. The ld. Assessing Officer thereafter took the cost of acquisition at Rs.22,34,375/-. This cost of acquisition was taken on the basis of valuation report dt. 03/05/2010, filed by the assessee. 21. The dispute at the end of the ld. CIT in the 263 proceeding relates to computation of cost of acquisition. The ld. CIT was of the view that cost of acquisition should be Rs.16,69,018/-. The asses....
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....corded a finding about the error that had crept in which required action u/s 263 of the Act. Therefore, in the absence of this finding, we are of the view that the impugned order is not sustainable and hence the same is quashed. 23. In the result , appeal of the assessee is allowed. Order pronounced in the Court on 31st October , 2022 at Kolkata . ============= Document 1 "I OFFICE OF THE COMMISSIONER OF INCOME TAX, KOL-V, KOLKATA BAMBOO VILLA, 169. A.J.C. BOSE ROAD. KOLKATA: 700 014 No. CTT-V/KOL/U/s.268/2013-1-4/ 23 05 To: Sri Sukumar Das, 65B,Linton Street, Kolkata-70001+. Date: 11/11/2013 Sub: Revision u/8.263 of the order U/s. 1-43(8)/1+7 dt.22.12.2011- for the A.Y. 2007-2008- PAN AGGPD19 HA-reg.- Please refer to the above. On perusal of the assessment record it is seen that the return of income in your cuse for the A.Y. 2007-2008 was filed on 11-05-2008 declaring total income of Rs.4,50,760/-. The assessment order u/s.148(8)/147 was passed by ITO,Wd-1-(1) on 22.12.2011 determining total income of Rs.30.2+,020/-. It is further seen from the assessnient order and the relevant assessment record that the....