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TMI Blog2015 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case but has failed to do. We, therefore, fully agree with the stand of the assessee that the impugned order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee and without applying his mind. In our opinion, this failure of the Ld. CIT, however, does not constitute any legal infirmity to make the order passed by him under section 263 invalid or void abinitio as sought to be made out by the assessee in the ground raised in these appeals. We are of the view that it would be just and proper in the facts and circumstances of the case, to set aside the impugned order of the Ld. CIT passed under section 263 and remit the matter back to him with a direction to pass fresh order under section 263 after duly taking into consideration the explanation offered by the assessee and after applying his mind. Needless to observe that the Ld. CIT(A) shall pass well discussed and well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - ITA Nos.1075 to 1077/Hyd/2014 - - - Dated:- 17-6-2015 - Shri B. Ramakotaiah Smt.Asha Vijayaraghavan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sq.Yds for 15,09,000/- which works out to 14,485/- per Sq Yd. However, compliance to Section 50C was not verifiable as the document was not registered in the absence of which even if the rate of 14,485/- per SqYd is adopted, the capital gain would work out to 52,51,537/- (362.55 Sq. Yds surrendered x 14,485/) in place of 34,77,500/- offered by the assessee. However, the assessment was completed by adopting the amount offered by the assessee. This fact has not been verified during the assessment proceedings. A. Y.2007-08 7. The assessee was allowed exemption u/s 54F for an amount of ₹ 13,91,000/- in respect of Flat No. 205 in the FY 2004-05. This Flat No. 205 was subsequently gifted by the assessee to Srnt. Kiran Gupta on 20-02-2007 which indicate that the assessee did not hold the property for the period prescribed u/s 54F. Consequently, the amount of ₹ 13,91,000/- claimed needed to be disallowed. This fact has not been verified during the assessment proceedings. 8. Since the assessments were completed without analyzing or verifying the issues as stated above, it was considered that the said orders are erroneous in so far as they are prejudicial to the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... You may note thet; after construction the land is only an undivided portion and the sale is always made not on what land comes as undivided shsre, but on the basis of oudt-up area. Hence, just for giving the break-up as requested by the department; the cost of building was taken on the basis of Construction cost No one would sell a building at cost of construction. The flat was sold for ₹ 1355.14/- per sft (Rs. 1355.14/per sq.ft (Rs.1355.14 *2140 SFT = ₹ 29,00,000). You may note that the government rates for sale of flat is only on the composite basis (Land Building) and no calculation of land is taken, as this is how the sale of flats are done. We reiterate that the flat was sold for ₹ 1355.14/- per sft only and the AO has correctly taken the value of Land on date of agreement. Hence, the cost so arrived (Rs. 14,485 per sq. yd) cannot be assigned to the land for determining the sale consideration. The sale consideration actually computed is on the basis of cost of construction (5350 sq. ft* ₹ 650/- per sqft) of buht-up area developed and received by the assessee in exchange of land given for development. All these facts have been consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial to the interest of Revenue. Reference in this regard can also be made to the decision of Special Bench, ITAT Chennai reported in 313 ITR (AT) 182 Chennai SB wherein it was observed that it is not necessary for the Commissioner of Incometax in revision to make further enquiries before canceling the Assessment Order of the A.O. The Commissioner of Income-tax can regard the order as erroneous on the ground that in the circumstances of the case, the A.O. should have made further enquiries before accepting the statements made by the assessee in his return. It is incumbent on the A.O. to investigate the facts stated in the return when circumstances would make such an enquiry prudent. The word erroneous in 5ec.263 of Income-tax Act, 1961 includes cases where there has been failure to make necessary enquiries. Considering the above, the order passed by Assessing Officer without examining the issues narrated above are definitely erroneous and prejudicial to the interest of Revenue. 5. under the circumstances stated above, the Assessment orders passed by the A.a. for the A.Ys. 2005-06 to 2007- 08 dated 26.12.2011 are set aside with a direction to examine the issues in prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case but has failed to do. We, therefore, fully agree with the stand of the assessee that the impugned order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee and without applying his mind. In our opinion, this failure of the Ld. CIT, however, does not constitute any legal infirmity to make the order passed by him under section 263 invalid or void abinitio as sought to be made out by the assessee in the ground raised in these appeals. We are of the view that it would be just and proper in the facts and circumstances of the case, to set aside the impugned order of the Ld. CIT passed under section 263 and remit the matter back to him with a direction to pass fresh order under section 263 after duly taking into consideration the explanation offered by the assessee and after applying his mind. Needless to observe that the Ld. CIT(A) shall pass well discussed and well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. 15. Respectfully following the Coordinate Bench Decision, the appeals of assessee are treated as allowed for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 15. Respectfully following the Coordinate Bench decision, since facts are similar, we are of the view that it would be just and proper to set aside the impugned orders of the ld CIT, passed u/s 263 and remit the matter back to him with the direction to pass fresh order u/s 263 after duly taking into consideration the explanation offered by the assessee and after applying his mind. Needless to observe that the ld CIT shall pass well discussed and well reasoned order, after giving sufficient opportunity to the assessee. Since the orders are set aside to the CIT, we do not intend to discuss about the merits of the issues raised and assessee is free to contest, if need be, on merits . 16. In the result, three appeals of the assessee are treated as allowed for statistical purposes. Sd/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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