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TMI Blog2014 (11) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... re must be some prima facie material on record to show that tax which was lawfully eligible has not been imposed – relying upon Commissioner Of Income-Tax Versus Gabriel India Limited [1993 (4) TMI 55 - BOMBAY High Court] - the AO applied his mind to the facts of the case and after necessary enquiry, he had passed the assessment order – revenue has not brought any material on record contrary to the facts brought out by the AO - decided in favour of assessee. - ITA No. 1109/Hyd/2014 - - - Dated:- 29-10-2014 - SHRI B. RAMAKOTAIAH AND SMT. ASHA VIJAYARAGHAVAN, JJ. For The Appellant : Sri K.A. Sai Prasad For The Respondent : Sri D. Sudhakar Rao ORDER PER ASHA VIJAYARAGHAVAN, J.M.: This appeal by the assessee is directed against the order passed u/s. 263 of Income-tax Act, 1961 by the Commissioner of Income-tax-III, Hyderabad dated 24.03.2014 for assessment year 2009-10. 2. The assessee filed his return of income on 30.8.2011 admitting total income of ₹ 14,28,675. The case was taken up for scrutiny as the return of income was filed in response to the notice u/s. 153C of the Act. Assessment order was passed on 30.12.2011 by determining total income at & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2009 towards sale of rural agricultural land in S. No. 273/B admeasuring 5 acres situated at Kakunur Village. In the subsequent year return of income i.e. Asst. year 2010-11 the assessee has received balance sale consideration of ₹ 2,00,000/- The total advance of ₹ 15,00,000/- is admitted in the Balance Sheet filed with the return of income. As the asset sold is rural agricultural land no capital gain was admitted in the return of income filed for the A.Ys. 2009-10 and 2010- 11. During the course of scrutiny assessment proceedings the assessee has filed details to show that the land sold is rural agricultural land and admitted agricultural income in the return of income. The Assessing Officer has verified the details filed and accepted the claim of the assessee. Though the assessee has claimed capital gain exemption on the sale of agricultural land for ₹ 15,00,000/- the Assessing Officer, has insisted that the excess amount received over and above the sub registrar value of ₹ 6,55,000/- is the income from other sources in the A.Y 2010- 2011. and the same was offered and assessed accordingly. The tax was levied on the other sources income of ₹ 8, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces (15,00,000 6,55,000). The learned AR submitted that the CIT is not justified in directing the Assessing Officer to make further enquiries with regard to agricultural land even after submitting documents i.e., patta passbook, population certificate, translated sale agreement copy. 8. On the other hand, the learned DR relied on the order of the CIT. 9. We have heard both the parties. We find that the assessee in HUF status has filed it return of income for A.Y. 2009-10. In the Balance Sheet along with the return of income, the assessee has shown advance of ₹ 13 lakhs received on 30.3.2009 towards sale of agricultural land in Sy. No. 273/B admeasuring 5 acres situated at Kakunur village and in the subsequent year for A.Y. 2010-11 it was shown in the return of income that the assessee has received balance sale consideration of ₹ 2 lakhs. The total advance of ₹ 15 lakhs was admitted in the Balance Sheet filed with the return of income as the asset sold is a rural agricultural land, no capital gain had been admitted for the A.Ys. 2009-10 and 2010-11. 10. The Assessing Officer has verified during the course of assessment proceedings the details filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction Under Section 263 as follows: Two circumstances must exits to enable the Commissioner to exercise the power of revision under this sub-section viz., (i) the order should be erroneous; and (ii) by virtue of the order being erroneous prejudice must have been caused to the interest of the Revenue. An order cannot be termed as erroneous unless it is not in accordance with law. This section does not visualize a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer who passed the order, unless the decision is held to be erroneous. Cases may be visualized where the Income tax Officer while making as assessment examines the account, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimates himself. The Commissioner, on perusal of records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a higher figure than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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