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2019 (4) TMI 852 - ITAT HYDERABADRevision u/s 263 - whether the assessment order was erroneous and also prejudicial to the interests of the Revenue? - HELD THAT:- Not inclined to accept or adjudicate this contention of the assessee at this stage for the simple reason that the said question is pending adjudication before the CIT(A) and if it is held to be not sustainable, then the order u/s 263 also would not be sustainable as the very basis would have been knocked down. Therefore, it cannot be said that the assessment itself is a protective assessment. Therefore, the first objection of the assessee is not adjudicated at this stage. SCN related to taxability of capital gain on GDA relating to Stock -in- trade - in the year of executed the sale deed transferring the stock-in-trade or when stock-in-trade given for joint development to the builder - HELD THAT:- From the judgments in DHEERAJ AMIN VERSUS ACIT [2014 (6) TMI 1017 - ITAT BANGALORE] & WIPRO LTD. VERSUS DCIT [2015 (10) TMI 826 - KARNATAKA HIGH COURT] it is clear that the stockin- trade can be considered as transferred only in the year in which the assessee has executed the sale deed transferring the stock-in-trade and not when the assessee has given stock-in-trade for joint development to the builder. As already held in the above cases, the provisions of section 2(47)(v) would apply only to the capital asset and not to stock-in-trade. We find that the stock-in-trade cannot be considered as transferred in the relevant financial year and therefore, the assessment order cannot be considered to be prejudicial to the interest of the Revenue. Therefore, since of the twin conditions for initiating and also passing of an order u/s 263 is not satisfied and the first ground on which the assessment order has been revised is not sustainable, the CIT order u/s 263 has to be set aside on this ground alone. SCN related to taxability of unsold flats - assessee has received 24 flats from M/s. D.M. Builders and 2 flats were left unsold - amendment introduced by the Finance Act, 2017 w.e.f. 1/4/2018 regarding taxability of notional rent on the two unsold flats - HELD THAT:- When the assessment order was passed on 31.03.2016 when the relevant provision has not even been brought into statute book. The AO cannot be expected to apply the same. Therefore, on this account also, the assessment order cannot be said to be erroneous and prejudicial to the interest of the Revenue. Therefore, we set aside the order of the CIT u/s 263 of the Act. - Decided in favour of assessee.
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