TaxTMI 
TaxTMI 
2023 (7) TMI 610
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....ax Act, 1961 [hereinafter referred to as "the Act"], for the Assessment Year 2017-18. 2. The grounds raised by the assessee read as under: "1. The order passed by the Hon'ble PCIT is erroneous on facts and contrary to the provisions of law and therefore requires to be quashed. It is submitted that it be so held now. 1.1 The Hon'ble PCIT erred on facts and in law in holding that the order passed by the Assessing officer under section 143(3) of the Act was erroneous and in so far as it is prejudicial to the interest of revenue, thereby setting aside the aforesaid order with direction to pass fresh assessment order in respect of capital gain from sale of depreciable asset. It is submitted it be so held now. 1.2 The Hon'ble PCIT erred in....
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....axman 434." 3. As transpires from the order of the ld. PCIT, the revisionary power under Section 263 of the Act was exercised by him on noting the error in the order passed by the Assessing Officer that a palpable incorrect claim of set off of brought forward Long Germ Capital Loss against Short Term Capital Gain earned by the assessee during the year was not duly examined and verified during the assessment proceedings. 4. The Short Term Capital Gain related to that earned on sale of depreciable asset i.e. building (residential flat) forming part of the block of assets "Building-Residential in the fixed assets" and net capital gain was returned by the assessee under Section 50 of the Act amounting to Rs. 2,96,48,487/- .The brought forward....
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....essing Officer has taken the gain arisen on sale of the depreciable asset i.e. building (residential flat) as Long-term capital gain instead of Short-term capital gain as per the provisions of Section 50 of the I.T. Act. From the above facts, it was noticed that the Assessing Officer has not made verification of the above issue which should have been made during the course of assessment proceedings." 5. On going through the contents of the order of the ld. PCIT and after hearing the arguments of the ld. Counsel for the assessee before us, we find that the exercise of power by the ld. PCIT for revising the order of the Assessing Officer was not in accordance with law as there was no error as such in the order of the Assessing Officer. 6. W....
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....e assessee since it was in consonance with the decisions of the Hon'ble jurisdictional High Court on this issue. The ld. PCIT, we find, though takes note of these contentions of the assessee at paragraph nos. 7 & 8 of the order, however, still goes on to hold the assessment order passed to be erroneous on account of the fact that the Assessing Officer did not verify the claim of the assessee considering the relevant provisions of the Act and also keeping in view the decisions of the Hon'ble jurisdictional High Court. 6.1 Paragraph No.9 of ld. PCIT's order reveals that, after holding the assessment order to be erroneous on this count, he restored the issue back to the Assessing Officer for verification of the claim of the assessee. The cont....
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....Assessing Officer to pass a fresh assessment order after taking into consideration the issues as may have been already considered together with the issue discussed herein above also. The Assessing Officer is also directed verify as to whether the facts of the case are identical to the facts of the cases decided by the jurisdictional Hon'ble Gujarat High Court while passing the fresh assessment order. Needless, to mention that while passing the fresh assessment order, consequent to this order being passed under Section 263 of the I.T. Act, the Ld. AO shall grant reasonable and sufficient opportunity of being heard to the assessee." 6.2 It is clearly evident that the ld. PCIT has recorded no infirmity in the contentions made by the asses....
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.... case of Commissioner of Income Tax vs V.S. Dempo Company Ltd.(2016) 74 taxmann.com 15 (SC), was also placed before us, along with other decisions of High Courts and the ITAT holding so. 6.4 Surely therefore there is complete absence of finding of any error by the Ld. PCIT in the order of the AO with respect to the issue involved. Also the assessee has demonstrated before us its claim being in accordance with law, which has remained uncontroverted by the Ld. DR. Therefore we are in agreement with the Ld. Counsel for the assessee that the AO had allowed the claim taking a plausible view on the issue and in such circumstances there is no scope for invocation of revisionary powers u/s 263 of the Act by the Ld.PCIT, since the finding of error ....