TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 1613
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....ble Pr. CIT, Jamnagar erred in law and in facts by setting-aside the order passed by the assessing officer under section 147 r.w.s. 144B of the Income-tax Act, 1961, even when the assessment order was passed by the assessing officer under section 143(3) of the Act, after conducting necessary enquiries and after due application of mind regarding share of assessee, the deduction u/s. 54B & Valuation report given by Govt. valuer 3. Hon'ble Pr. CIT, Jamnagar erred in law and in facts by not providing the sufficient opportunity of being heard and passed an order u/s. 263 without considering the adjournment application by the assessee. 2. The relevant material facts, as culled out from the material on record, are as follows. During the revision proceedings, under section 263 of the Income tax Act, 1961, the Learned Principal Commissioner of Income-Tax (in short "Ld PCIT"), has observed that assessee has not filed return of income for the assessment year (AY) 2013-14, u/s 139(1) of the Income-tax Act, 1961 (for short 'the Act'). The assessment was re-opened for the reason that the assessee along with 24 co-owners have sold an immovable property for a sale considera....
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.... return of income on 26/02/2022 declaring total income of Rs 3,468/- and claiming capital loss of Rs. 20,66,730/-. The return is filed after a period of 11 months which is very much beyond the time allowed in notice u/s 148 of the Act. The reopened assessment was completed u/s 147 rws 144 rws 144B of the Act on 28/03/2022 accepting the returned income. 3.1. During reopened assessment proceeding, vide letter dtd 23/03/2022, you have submitted revised working of capital gain computation considering the jantri value as sales consideration of Rs 50,63,325/- (@6.95% of 7,28,53,600) and after deducting indexed cost of purchase (Rs 35,19,278) and deduction u/s 54B of the Act (Rs 27,13,863) resulting in capital loss of Rs 11,69,816/-. Further it is seen that you have sold the agriculture land which is situated within 5 kms of the Jamnagar Municipal Corporation limit which is confirmed by you in submission dated 23/03/2022. 3.2. In respect to claim of deduction / exemption u/s 548 of the Act, neither you have filed original return of income u/s 139(1) of the Act nor filed return within the time allowed in notice u/s 148 of the Act. Therefore, you are not eligible for exemp....
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....ce to the Departmental Valuation Officer (DVO) for determining of the fair market value of the property as on 01/04/1981. The DVO, Income-tax Department, Rajkot vide report dtd 27/10/2023 has submitted the fair market value (estimated value) of the property under consideration as on 01/04/1981 at Rs 84,357/-. Accordingly, the assessing officer should have taken the purchase value of Rs 84,357/- as on 01/04/1981 and accordingly the assessing officer should have worked out the indexed cost of purchase of the property under consideration, which the assessing officer has not done in the order passed u/s 147 rws 144 rws 1448 of the Act dated 28/03/2022 for the AY under consideration. 4. In view of the above facts, it is seen that while passing the order u/s 147 rws 144 rws 144B of the Act dated 28/03/2022 the assessing officer failed to consider the following: (i) Sale consideration should be taken at Rs 67,53,857/- (being share @9.27%) as against Rs 50,63,325/- (share @6.95%) taken by you (ii) As per the DVO, Rajkot's report dtd 27/10/2023, the purchase cost should be taken at Rs 84,357/- as on 01/04/1981 as against Rs 59,43,320/- taken by you for working....
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....Owner, which is not acceptable. 9. On the other hand, the Ld. D.R. for the Revenue, has primarily reiterated the stand taken by the ld. PCIT, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 10. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld PCIT and other materials brought on record. We note that assessee is an individual and agriculturist. During the year under consideration, assessee did not have any income chargeable to tax and hence assessee has not filed return of income. During the year under consideration, assessee had along with 24 co-owners, vide deed no. 3986/2012 on 17/04/2012 had jointly sold an immovable property, at Nagar Sim, R S No. 1155, Paiki 2, Jamnagar for total sales consideration of Rs. 2,09,00,000/- wherein assessee's share is 6.95% i.e. amounting to Rs. 14,52,550/-. However, the market value/ Jantri value of the property as determined by Sub registrar, Zone-2, Jamnagar is of Rs. 7,28,53,600/-. The assessee&#....
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....and within period of 2 years from the date of transfer of property is also satisfied. Details of lands purchased is as under: Purchase Deed No. Revenue Survey No. Purchase Consideration paid (in Rs.) Stamp duty paid (in Rs. Registration Charges Total Assessee Share (1/6th) 4014/2012 761/4 31,55,000 18,74,000 31,780 50,60,780 8,43,463 4011/2012 761/3 17,35,000 10,31,000 17,570 27,83,570 4,63,928 4002/2012 762/1 14,21,000 10,94,000 14,460 25,29,460 4,21,577 4038/2012 761/1 18,42,000 8,44,000 18,720 29,54,720 4,92,453 4006/2012 761/2 18,42,000 10,94,000 18,650 29,54,650 4,92,442 27,13,863 Further, it is submitted by ld Counsel that the share of assessee in the property is considered on the basis of Muslim Personal Law (Shariat) Application Act, 1937, wherein female members of the family are entitled to receive half than the male member's share in the property. Thus, on the basis of Muslim Personal Law (Shariat) Application Act, 1937, assessee's share in the property is 6.95% (55.6*1/8) out of total share of his father @ 55.6% in the whole property....
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....td. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the assessing officer can be held to be erroneous order, that is (i) if the Assessing Officer's order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii)Assessing Officer's order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the assessing officer has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the assessing officer can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon'ble Supreme Court in the case of Malaba....