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TMI Blog2014 (12) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... ered a particular finding - an agreement for sale confers no title in the immoveable property - The Commissioner possibly is not aware of the nature of the transaction and in immoveable property in the city of Mumbai - This agreement for sale definitely confers rights and which are capable of being enforced - it is not clear as to why the Commissioner held another opinion - apart therefrom only his view and opinion will not enable him to exercise the power u/s 263, that is not found to be permissible in law by the Tribunal - if his view on the same set of facts pertaining to the transaction alone have gone into in the exercise undertaken by him and for invoking the power u/s 263 of the Act, then, there was no error in reversing his order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal is vitiated by error of law apparent on the face of the record. He took us through the order of the Assessing Officer and that of the Commissioner. He showed us relevant dates. He submits that on 14 March 2001 three flats/immoveable property are stated to have been acquired by the Assessee, but that is incorrect. There was a deed of rectification dated 9 October 2002. There is another date, i.e. 24 October 2002, which is when the agreements were registered with the authorities for stamp duty purpose. In such circumstances, he submits that the Assessee is not entitled to claim long term capital gains if the asset was not held for the minimal period of 36 months. There is another date and which is the date of the Occupation Certificate is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is another date for registration of the agreement for the purpose of stamp duty, namely 22 October 2002. The rest of the dates are including a date of certificate styled as 'Occupation Certificate' issued by the Municipal Corporation. 5. If all these dates are taken together, then the property has not been held for the stipulated period. This inquiry was crucial and should have been made is the submission. 6. Having perused the Commissioner's order in its entirety, what we find is that firstly the Commissioner rendered a particular finding. In his opinion, an agreement for sale confers no title in the immoveable property. The Commissioner possibly is not aware of the nature of the transaction and in immoveable property i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer for not holding any inquiry or doing proper inquiry and collecting the relevant information. In para 7, he holds that without prejudice to what has been observed by him earlier, even if the Assessee's version is to be accepted, the Assessing Officer failed to apply a proper indexation because separate indexation were needed for two separate sets of agreement, the original agreement to sale and the deed of rectification, which contained different areas and different negotiated prices. This is also nothing, but his view. If his view on the same set of facts pertaining to the transaction alone have gone into in the exercise undertaken by him and for invoking the power under section 263 of the Act, then, we do not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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