Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2017 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (5) TMI 419 - ITAT MUMBAIRevision u/s 263 - unexplained investment in properties - capital gain computation - difference in the payment of stamp duty between the amount as reflected in Balance Sheet and an amount reflected in the reply submitted before the AO during the assessment proceedings - Held that:- It is not a case where no enquiries have been made by AO or an inadequate enquiry were made by the AO. In case of differential in stamp duty of ₹ 7,73,000/- as pointed out by learned CIT, the assessee duly explained that the value reflected as stamp duty in Balance Sheet comprised of stamp duty of ₹ 34,48,500/- and registration charges of ₹ 6,00,000/- and there is no difference in the value as reflected in Balance Sheet in the replies filed by the assessee before the AO during proceedings u/s 143(3) r.w.s. 153A of the 1961 Act. The said amounts were duly reflected in the Balance Sheet of the assessee. Investments were reflected in the Balance Sheet of the assessee. The evidences for above assessment years were filed before the AO in proceedings u/s 143(3) r.ws. 153 A of the 1961 Act which were verified by the AO. Hence, it could not be said that the said view is erroneous so far as prejudicially to the interest of revenue so as to be covered under the mandate of Section 263 of the 1961 Act which is fortified further by the AO itself dropping both the grounds of invocation of Section 263 of the 1961 Act by learned CIT in an assessment order dated 30-03-2014 framed u/s 143(3) r.w.s. 263 of the 1961 Act, wherein no additions were made on grounds of differential in stamp duty as well investments in properties and its sources. With respect to treatment of short term capital gains on sale of shares as business income invoked as one of the grounds by learned CIT for applying Section 263 also lacks merit as the AO had while framing assessment order dated 29-12-2010 passed u/s 143(3) r.w.s. 153A of the 1961 Act had made proper and detailed enquiries against which the assessee submitted detailed replies and arrived at conclusion to treat the gains arising from sale of share as capital gains which is a plausible view both on facts and on law. The replies filed by the assessee on this ground in proceedings before the AO u/s 143(3) r.w.S 153A of the 1961 Act is reproduced in preceding para's of this order and are not repeated again for sake of brevity. Thus, the order dated 25-03-2013 passed by learned CIT u/s 263 of the 1961 Act is even not sustainable on this ground. AO itself in original assessment framed u/s 143(3) of the 1961 Act vide assessment orders dated 19-12-2007 and also in assessment orders dated 29-12-2010 passed u/s 143(3) r.w.s. 153A of the Act has accepted gains on sale of shares as capital gains while it is brought on record that detailed enquiry was made by the AO before passing assessment order dated 29-12-2010 passed u/s 143(3) r.w.s. 153A of the 1961 Act. Even keeping in view the newly inserted explanation 2 to Section 263 of the 1961 Act, in our considered view this order dated 25-03- 2013 of the learned CIT u/s 263 of the 1961 Act is not sustain able in the eyes of law - Decided in favour of assessee.
|