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TMI Blog2015 (11) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... R, JM For The Assessee : Shri Siddartha Ranka and Shri Mujjaffar Iqbal (Adv) For The Revenue : Shri M.S. Meena (CIT) ORDER PER T.R. MEENA, A.M. This is an appeal filed by the assessee against the order dated 07/03/2013 of the learned C.I.T., Kota for A.Y. 2008-09. The respective grounds of appeal are as under:- 1. For that the learned CIT, Kota has erred in setting aside the assessment order passed by the Assessing Officer Ward 1(1), Kota U/s 263. 2. For that the assessee filed the appeal which was heard and appeal order by learned CIT (Appeal) Ajmer passed on 11/1/2013 appeal No. 132/2010/2011 in favour of the assessee. 3. For that the learned CIT, Kota has erred in passing the order U/s 163 being assessment order passed by A.O. was not prejudicial to revenue because A.O. enhanced the income from ₹ 2,47,180/- to 3,45,600/- and created demand of ₹ 42,181/-. 4. For that the learned CIT, Kota has ignored the order passed by CIT Appeal Ajmer which was in the same case same year and same facts and appeal was decided in favour of assessee. 2. In this case, original assessment was completed by the Assessing Officer on 04/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 418843/- Less: Deductions (Chapter VI-A) U/s 80C LIC 50000 PPF 5000 G.P.F. 13242 State Insurance 4800 S.I. ACC. Insu 200 73242/- Total Income 345601/- R/o 345600/- The ld CIT, Kota had received letter from the ITO, Ward 1(1), Kota on 03/10/2012, who had proposed action U/s 263 of the Act on the following points decided by the A.O. as erroneous and prejudicial to the interest of revenue. (i) Property at 124, Rajiv Gandhi Nagar, Kota consists of 4 story, Girls Hostel Building in the name of M/s Basant Vinayak residency. Mess other related facilities are also provided at the hostel itself. Hence, the above said receipts are in nature of business receipts instead of related to income from house property. (ii) The assessee has claimed that 50% receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer has not made proper enquiries, the CIT can direct the A.O. to hold further enquiries in the matter. The Hon'ble Supreme Court in the case of Rampyari Devi Sarogi Vs. CIT (1968) 67 ITR 84 and Tara Devi Aggarwal Vs. CIT (1973) 88 ITR 323 has held that the Commissioner may consider an order of the Assessing Officer to erroneous not only if it contains some apparent error of reasoning or of law or fact on face of it but also because it is a stereo typed order which simply accepts what the assessee has stated in his return and fail to make enquiries which are called for in the circumstances of the case. He further relied on the decision of Hon ble Calcutta High Court in the case of Dawjee Dadabhoy Co. Vs. S.P. Jain (1957) 31 ITR 872, Hon ble Karnataka High Court decision in the case of CIT Vs. T. Narayana Pai (1975) 98 ITR 422, Hon ble Bombay High Court decision in the case of CIT Vs. Gabriel India Ltd. (1993) 203 ITR 108 and Hon ble Gujarat High Court decision in the case of CIT Vs. Smt. Minalben S. Parikh (1995) 215 ITR 81 wherein the Hon'ble High Court treated loss of tax as prejudicial to the interests of the revenue. He further observed that even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade under the head income from house property at ₹ 71,666/- estimated income from students/tenants and disallowance of expenses. The ld CIT(A), Ajmer had decided the assessee s appeal on 11/1/2013 while the ld CIT, Kota had issued the show cause notice on same issue pending before the ld CIT(A) on 01/1/2013. The ld Assessing Officer s order has been merged with the order of the CIT(A), Ajmer. During the appellate proceedings, the CIT, Kota have no power to consider the same issue which was pending before the ld CIT(A) U/s 263 of the Act. Therefore, he prayed to set aside the order passed by the CIT, Kota. He further submitted that the assessee filed return on 22th July, 2008 alongwith computation of income. The ld Assessing Officer selected the case of the assessee for scrutiny U/s 143(3) of the Act. He issued questionnaire vide letter dated 23/09/2009, which was replied by the assessee. He has drawn our attention on page No. 3 of the paper book wherein the assessee has submitted that plot No. 124, Rajiv Gandhi Nagar, was allotted to assessee on lottery basis by UIT. The cost was ₹ 9,76,275/-. However, the construction was supervised by Shri Ajay Bhargava with the help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Smt. Nirmala Devi Chordia Vs. CIT ITA No. 150/JP/2015 for A.Y. 2006-07 on proper inquiry and verification wherein CIT carried a different perception about the manner of inquiry, which ought to have been conducted by the Assessing Officer, which is held not sufficient to hold the assessment order erroneous and prejudicial to the interests of the revenue. Therefore, the ld AR has prayed to set aside the order of the ld CIT, Kota and allow the assessee s appeal. 4. At the outset, the ld CIT DR vehemently supported the order of the ld CIT, Kota and argued that the assessee has business income from running the hostel, which required to be assessed under the head business and profession. Therefore, the ld CIT was right to pass order U/s 263 of the Act as the order of the Assessing Officer was erroneous and prejudicial to the interests of the revenue. 5. We have heard the rival contentions of both the parties and perused the material available on the record. In this case, detailed scrutiny had been made on this issue whether the income from running the hostel is to be assessed as income from house property or business property. The detailed questionnaire had been issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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