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TMI Blog2017 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... rom house property and income from other sources. He filed his return of income for the assessment year 2008-09 on 31-03-2009 declaring total income at Rs. 23,63,450. The assessment was completed u/s 143(3) on 27-12-2010 determining total income at Rs. 23,90,735 interalia making additions towards re-working of long term capital gain declared by the assessee from sale of property. 3. Thereafter, the Commissioner of Income-tax, Thane issued a show cause notice u/s 263 of the Income-tax Act, 1961 dated 20-11-2012 and asked the assessee as to why assessment order passed by the AO shall not be revised u/s 263 of the Income-tax Act, 1961 for the reasons discussed in the show cause notice. The CIT proposed to revise the assessment order on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO at the time of assessment proceedings and he has taken a plausible view. Therefore, the CIT has no jurisdiction to revise the assessment order on the same issue on which he AO has conducted necessary enquiry and applied his mind. The assessee further contended that the rental income from the impugned property has been treated as business income for the assessment year 2006-07 which was accepted by the department. However, for the assessment year 2007-08, the same has been treated as 'Income from house property' in the light of Supreme Court judgement in the case of Shambu Investments Pvt Ltd vs CIT 263 ITR 143 (SC). Therefore, mere declaration of income under the head 'Income from house property' in one particular year cannot be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty as per the provisions of section 50C of the Act. The assessee ought to have considered guidance value for the purpose of computation of income. Even though the assessee has not taken the proper consideration for computation of income, the AO has not verified the issue and also not applied his mind which caused prejudice to the interest of the revenue. With these observations, he set aside the assessment order passed by the AO and directed him to redo the assessment denovo, after affording opportunity to the assessee. Aggrieved by the order of CIT, the assessee is in appeal before us. 6. The Ld.AR for the assessee submitted that the CIT erred in invoking jurisdiction u/s 263 to revise the assessment order based on the proposal sent by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Narain Singh vs CIT [156 ITD 275 (Chd)] 7. The Ld.DR, on the other hand, strongly supported the order of CIT and submitted that the assessment order passed by the AO is erroneous insofar as it is prejudicial to the interest of the revenue as the AO has filed to apply his mind on the issues at the time of assessment which is evident from the fact that the income chargeable under the head 'capital gain' has been assessed under the head 'income from business'. The AO has not conducted required enquiries on the issue which caused prejudice to the interest of the revenue. The assessee has sold the property and the consideration shown in the sale deed is less than the guidance value fixed for payment of stamp duty. As per the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital asset and hence, any surplus on sale of capital asset should be assessed under the head 'Income from capital gains'. The CIT also observed that the sale consideration shown by the assessee is less than the guidance value fixed for payment of stamp duty and as per the provisions of section 50C the assessee ought to have taken section 50C value for the purpose of computation of capital gain. Though the assessee has not considered the proper consideration as per the provisions of section 50C, the AO failed to examine the issue in the light of the provisions of the Act, which caused prejudice to the interest of the revenue. 9. There is no dispute with regard to the nature of property. The assessee, though claims the impugned property is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the case laws relied upon by the Ld.AR for the assessee and find that the case laws relied upon by the assessee are not applicable to the facts of the case before us as in the case before the Hon'ble Bombay High Court, the AO has conducted necessary enquiries on which CIT taken up for revision. Insofar as other case laws concerned, all are rendered under different facts of the case and hence not applicable to the facts of the present case. 11. In this view of the matter, we are of the considered view that the assessment order passed by the AO is erroneous insofar as it is prejudicial to the interest of the revenue. Therefore, the CIT was right in revising the assessment order u/s 263 of the Act and his order is hereby upheld. 12. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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