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TMI Blog2008 (2) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly covered in favour of the assessee by the decision of the Tribunal in the case of Charanbir Singh Jolly [ 2005 (8) TMI 576 - ITAT MUMBAI] , hence, respectfully following the same, we hold that the assessment order is correct in law. Thus, on merits, the issue is covered in favour of assessee, however, regarding jurisdiction for invoking the provisions of section 263, we would like to add that the assessee filed necessary details before the Assessing Officer and the Assessing Officer has passed assessment order after taking into consideration the same, hence, merely for the reason that no specific findings have been given in the assessment order, the same cannot be said have been passed without application of mind. In this view of the matter, we cancel the order under section 263 passed by the ld. CIT. In the result, appeal filed by the assessee stands allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... . The facts, in brief, are that the assessee filed return of income for the impugned assessment year on 30-9-2004 declaring total income at Rs. 18,06,385 comprising of income from house property, long-term capital gain, income from other sources, share of profit from the firm. The assessment was completed under section 143(3) of the Act on 27-7-2006 wherein the returned income was accepted. The ld. CIT noted that assessee had sold the flat during the year under consideration, whereon, after claiming the indexed cost at Rs. 18,74,571, the long-term capital gain had been shown at Rs. 3,94,229. The ld. CIT also noted that the manner of working of indexed cost of acquisition which is as under :-- Particulars Date Value Indexation Factor Indexed Price Purchase Price 7-8-1993 Rs. 9,39,000 463/244 Rs.17,81,791 Stamp duty 9-7-1996 Rs. 52,620 463/305 Rs. 79,879 Registration 13-11-1998 Rs. 9,780 463/351 Rs. 12,901 Rs. 10,01,400 Rs. 18,74,571 It was also noted that the said property was registered in the name of the assessee in 1998 and the year of construction thereof was mentioned as 1997. It was also noted that assessee had not filed any evidences with respect to var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial to the interests of revenue, hence, set aside the order, and directed the Assessing Officer to compute the correct long-term capital gain by adopting the indexed cost of acquisition on the basis of the date on which the property was held by the assessee after providing reasonable and sufficient opportunity of being heard. Aggrieved by this, the assessee is in appeal before us. 6. The ld. counsel narrated the facts and sequence of events starting from the date of agreement to purchase the flat i.e., 7-8-1993 till 12-12-2003, being the date of agreement for sale of the flat and based upon the various clauses of the purchase agreement, the ld. counsel contended that the assessee got the right over the flat in 1993. The ld. counsel also referred to the provisions of section 2(14) wherein it was provided that the term 'capital asset' meant property of any kind held by the assessee. . . . ." and based upon this definition, he contended that the assessee's right over the flat acquired by the assessee in 1993 fell within the definition of capital asset. The ld. counsel, in this regard placed reliance on the following decisions :-- (i) CIT v. Tata Services Ltd. [1980] 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous or prejudicial to the interests of the revenue so as to enable the CIT to invoke the provisions of section 263 of the Act. Coming to the other legal issue relating to the action of ld. CIT in invoking the provisions of section 263 of the Act, the ld. counsel contended that all the details in this regard had been filed with the Assessing Officer and referred to page 7 of the paper book containing letter dated 12-7-2006 addressed to the Assessing Officer wherein it was mentioned that copy of agreement regarding capital gain on sale of property was submitted. The ld. counsel also contended that it was merely a case of change of opinion and, hence, the ld. CIT was not satisfied to pass order under section 263 of the Act and for this proposition, he placed reliance on the following judicial decisions :-- (i) Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83 (SC); (ii) Saw Pipes Ltd. v. Addl. CIT [2005] 3 SOT 237 (Delhi); (iii) Jagadhri Electric Supply & Industrial Co. v. CIT [1987] 166 ITR 143 (Punj. & Har.); (iv) Venkata Krishna Rice Co. v. CIT [1987] 163 ITR 129 (Mad.); (v) Nazarabad Plantation v. State of Karnataka [1984] 150 ITR 499 (Kar.). 7. The ld. D.R. narrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625 wherein it was held that the requirement of registration of sale deed in the context of section 22 was not warranted, hence, in view of this decision also the decision of the Hon'ble Bombay High Court in the case of Smt. R.R. Sood (supra) was not correct in law. The ld. counsel further reiterated that in Explanation (iii ) to section 48 of the Act, the Legislature used the word 'asset' as against 'house property' used in section 54, hence, the assessee's view that it was entitled for indexation from 1993 was correct in law. The ld. counsel further contended that there was no merit in the alternate contention of the revenue that the assessee should be given benefit of indexation on the basis of dates of actual payments as the same was not relevant because in case of sale, the assessee was liable to pay capital gain tax in the year of sale, whether the assessee received sale consideration or not, and whole scheme of the Act was based upon the cost of acquisition irrespective of actual dates of payment. The ld. counsel also referred to the CBDT Circular No. 636 dated 31-8-1992 wherein the object of introduction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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