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TMI Blog2014 (2) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of invoking the power under Section 263 of the Act - the petitioner ought not to have approached the Writ Court at the stage of show cause notice - It is appropriate for the assessee to submit his reply to the notice and raise all the contentions available before the Assessing Authority – Decided against Assessee. - Writ Appeal No.113 of 2014 and M.P.No.1 of 2014 - - - Dated:- 28-1-2014 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Appellant : Mr. R. Sivaraman For the Respondents : Mr. Raj Jhabakh for Mr. Pramod Chopda JUDGMENT (The Judgment of the Court was made by T. S. Sivagnanam,J.) This Writ Appeal is directed against the order dated 28.11.2013 passed in W.P.No.5663 of 2013. 2. The appellant is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Assessing Officer; when there are primary materials before this Court to show that the Income Tax Officer considered the sale and treated it as long term notwithstanding the fact that it was a short term capital gain, prima facie it cannot be said that the Commissioner was not correct in issuing the show cause notice. Therefore the learned Single Judge held that it is open to the petitioner to take all the contentions available before the Assessing Authority. The learned Single Judge relied on the decision of the Honourable Supreme Court in the case of Special Director Vs. Mohd. Ghulam Ghouse and another reported in (2004) 3 SCC 440, wherein, the Honourable Supreme Court indicated that in normal circumstances, the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a perusal of the notice issued under Section 263 of the Act, it is seen that the Commissioner has stated that on perusal of the assessment records in the case of the appellant for the assessment year 2009-10 shows that the assessment was completed under Section 143(3) of the Act vide order dated 19.12.2011; the immovable property sale proceeds of Rs.2,30,00,000/- were treated as Long Term Capital Gains instead of Short Term Capital Gain, which has resulted into an order which is prejudicial to the interests of revenue. The expression "resulted into an order which is prejudicial to the interest of revenue" has to be held to be sufficient for the purpose of invoking the power under Section 263 of the Act. As pointed out by the learned Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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