TaxTMI 
TaxTMI 
2023 (9) TMI 1017
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.... keeping with provisions of law and needs to be cancelled. (Tax Effect: Rs. 6,31,212/-) 3. The learned Pr. Commissioner of Income Tax-1, Nashik has erred in directing the Assessing Officer to reframe the assessment order under section 263 despite the Assessing Officer had passed the assessment order earlier under section 143(3), after verifying and examining the issues. (Tax Effect Rs. 6,31,212/-) 4. The appellant craves leave to add, amend or alter any of the grounds of appeal." Brief facts of the case : 2. In this case, ITAT Pune vide its order dated 17.06.2021 dismissed the appeal of the assessee on the ground of non- appearance. Subsequently, assessee filed Miscellaneous Application No.02/PUN/2022. Vide order dated 23.05.2022 in M.A. No. 02/PUN/2022, ITAT recalled earlier order dated 17.06.2021 in appeal no ITA No.1869/PUN/2018. 3. In this case, ld.Pr.CIT-1, Nashik passed an order under section 263 for A.Y. 2014-15 on 01/11/2018. The facts emanating from the order under section 263 are as under : "The assessee, during F.Y. 2013-14 has purchased 30% share in 03 commercial NA plots having a total area of 4200 sq. Mtr, as follows: Sr. No. ....
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..../15+16/1 3310 Sq. Mtrs. 2806 = 90 2] 113/15+16/2 404 Sq. Mtrs. 352 = 60 3] 113/15+16/3 486 Sq. Mtrs 00 = 95 Total 4200 Sq. Mtrs. Along with Hotel buildings". 4.1 The ld.AR submitted that plot no. S.No.113/15 + 16/2 admeasuring 404.00 Sq Mtrs is open space and was acquired by Shirdi Sansthan. Further, Plot at S.No.113/15 + 16/3 admeasuring 486 Sq. Mtrs was fully used for DP Road. Both these plots could not be sold by the assessee. Since there was no value attached to the same the assessee has claimed the cost paid towards the total area as mentioned in the AO's order. Submission of ld.Departmental Representative (ld.DR) : 5. The ld.DR vehemently supported the order of ld.Pr.CIT. The ld.DR stated that assessee had sold only one plot and therefore cost of acquisition is to be allowed as deduction only for one plot. The assessee had claimed deduction of cost of acquisition of all the three plots. However, the AO had not verified this issue. Therefore, the order of the AO is erroneous and prejudicial to the interest of the Revenue. The ld.DR further submitted that whether the other two plots had been acquired by G....
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.... 22748969 F.Y. 2008-*09 14100000/582*939  ....
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....00,000/-. The description of property given in the Sale Deed is reproduced as under: 9. Thus vide the Sale deed dated 28/06/2013 which was duly registered on 11/7/2013, the assessee sold his 30% share in the plot number 113/15+16/1, Shirdi, along with the Hotel Sai Residency standing on the said plot. The impugned sale deed has mentioned only one plot. There is no mention of other two plots in the said Sale deed. However, while calculating Capital gain the assessee has reduced 30% Value of all the three plots purchased by the assessee along with two other persons vide Sale deed dated 09/02/2009. Section 48 explains the mode of computation of Capital gain. The Section 48 is reproduced here as under : "48. The income chargeable under the head "Capital gains" shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely :- (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition of the asset and the cost of any improvement6 thereto..." 10. In the case under consideration , the asset sold is....
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....ropped on the ground that the claim has been withdrawn. We, therefore, are of the opinion that the learned C.I.T. was perfectly justified in coming to his conclusions insofar as the issue No. (iii) is concerned and in passing the impugned order on that basis." Unquote. 11. In the case under consideration also, the assessee has made a claim which is prima facia erroneous. The AO has allowed the said erroneous claim. Hence, the Assessment Order is erroneous and prejudicial to the interest of revenue. This is not the case where two views are possible. Therefore, the Pr.CIT was right in invoking jurisdiction u/s. 263. Therefore, the order u/s. 263 is upheld. 12. Therefore, the Ground No.1 to 3 of the appellant assessee are dismissed. 13. The Ground No.4 is general in nature and does not need any adjudication. Hence, Ground No. 4 is Dismissed. 14. Accordingly the Appeal of the Appellant Assessee is Dismissed. Order pronounced in the open Court on 20^th April, 2023. ============= Document 1 १) कायम खरेदी देते तà¥à¤¯à¤¾ मिळकतीचे à¤....