2023 (9) TMI 1608

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the interest of revenue and that too by recording incorrect facts and findings and without observing the principles of natural justice. 2. That having regard to facts & circumstances of the case, Ld. Pr. CIT has erred in law and on facts in holding as under:- * That the assessee has not complied with the conditions enumerated for claiming deduction u/s 54B of the I.T. Act. * That the issue of said deduction has not been examined while completing the reassessment u/s 143(3)147 dated 21-03-2016. * That the re-assessment order is hereby set aside with the direction to AO to re-examine the issue of claim of deduction u/s 54B afresh. * That the deduction u/s 54B was not admissible to the assessee. 3. That having regard to the facts and circumstances of the case, order u/s 263 is bad in law for the reason that the proceedings u/s 147 initiated itself was bad in law as the order u/s 143(3)/147 dated 21-03-2016 was not maintainable and an invalid re-assessment cannot be set aside u/s 263 of the Act. 4. That the appellant craves the leave to add, amend, modify, delete any of the grounds of appeal before or at the time of hearing and all the above grounds are without prejudice ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... at Rs. 35,08,250/- and consequently claimed deduction u/s 54B of the Act in view of the fact that the assessee had purchased another agricultural land. The nil capital gain reported by the assessee was accepted by the Ld. A.O. in the re-assessment and concluded u/s 143(3) r.w.s. 147 of the Act on 21/03/2016. This assessment was sought to be revised by the Ld. PCIT by invoking revision jurisdiction u/s 263 of the Act on the ground that the Ld. A.O. had not examined the claim of deduction u/s 54B of the Act made by the Ld. AO, thereby making reassessment order erroneous and prejudicial to the interest of the Revenue. 6. We find that the assessee had claimed exemption u/s 54B of the Act amounting to Rs 37,75,000/- in respect of amount paid to Smt. Sangeeta Singh for purchase of agricultural land vide agreement to sell cum with possession deed dated 30.07.2009. In fact, we find that the assessee in the original return of income filed had duly disclosed the capital gains showing the lesser consideration. Therefore, the case was reopened and assessee filed his return in response to notice u/s 148 of the Act offering the correct figure of sale consideration and disclosing the capital ga....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....alabar Industrial Company Ltd. vs. CIT reported in 243 ITR 83 (SC), we hold that when adequate enquiries were indeed carried out by the Ld. A.O., the same cannot be subjected to revision by the Ld. Pr. CIT u/s 263 of the Act. Hence, the revision order passed by the Ld. PCIT deserves to be quashed on this point. 7. Further, we find on perusal of para-1 at page 1 of the order of Ld. PCIT u/s 263 of the Act, that there was a proposal u/s 263 of the Act dated 05/06/2017 received from Assistant Commissioner of Income Tax, Circle-2, Dehradun duly forwarded by the Addl. Commissioner of Income Tax, Range-2, Dehradun dated 07/06/2017 to the Ld. PCIT. This fact goes to prove conclusively that revision proceedings u/s 263 of the Act got triggered only based on this proposal sent by the Ld. A.O. through the Addl. CIT and that the revision proceedings were not initiated by the Ld. PCIT on his own and based on the independent examination of records from his side. Keeping in perspective the aforesaid factual position, if we read section 263 of the Act, it becomes clear that learned Pr. CIT or the Commissioner may call for and examine the record of any proceeding under this Act, and if on such ex....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....greement to sell an immovable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated. 25. In view of the aforestated peculiar facts of the case and looking at the definition of the term 'transfer" as defined under Section 2(47) of the Act, we are of the view that the appellants were e....