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TMI Blog2014 (12) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... entities. This exercise was required from the AO to have been conducted as a sensible quasi judicial officer. Thus all the deficiencies referred to by ld CIT make the impugned assessment order erroneous as well as prejudicial to the interest of revenue. The reliance on the judgments of Smt. Taradevi Agrawal [1972 (11) TMI 2 - SUPREME Court] and Smt. Renu Gupta [2007 (5) TMI 188 - RAJASTHAN HIGH COURT] is well placed by ld CIT. We uphold the order passed u/s 263. - Decided against assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Pawan Lashkary and Jitendra Agarwal (Coolectively M/s. Krishna Villa Apartments) to Shareholders. Shankar M Jethani, Shri Miraj Un nabi Khan and Shri Naved Saidi (collectively, M/s. Gold Dream Developer) for a consideration of ₹ 6.99 crores. The said stock (land in this case) virtually is in the hands of the M/s. Krishna Villa. After all, as Shakespeare sang, what is there in a name? Whether in the name of M/s. Krishna Villa or M/s Gold Dream Developers, through a series of almost conspiratorial and well orchestrated moves, Shankar M Jethani, Shri Miraj Un Nabi Khan and Shri Naved Saidi have the ownership of the Siroli land. 6. That there were take over agreements, revaluation of stock, crediting the difference between book value and revalued value, retirement one by on and ultimately the withdrawal from the capital account and declaration of such withdrawal as profit from firm are the other details that qualify the above finding. To quote Shakespeare again, Just as a rose by any other name smells just as sweet, a sale of property by any mode/route, however circuitious it may be, ultimately can be reduced to exchange of property/stock from one hand to the other for a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record; it was neither erroneous nor prejudicial to the interest of revenue. Ld. CIT after giving adequate opportunity of being heard to the assessee held that the order of ld. AO passed u/s 144 r.w.s. 153C was erroneous and prejudicial to the interest of revenue and directed AO to pass de novo assessment proper enquiries and considering the following:- (i) To ensure proper verification of the scheme launched by the firm, genuineness of the booking advances received on booking of the flats and expenses incurred in respect of the project. (ii) The taxability of the revaluation amount in the hands of the firm without prejudice to the stand taken in the case of the partners. He may explore the taxability of above amount under the head income from business as well as the head Capital Gain in view of the provisions of sec 45(4). 2.3 Aggrieved assessee is before us; ld counsel contends that while passing the order ld. CIT failed to appreciate that both the issues have been examined by the AO while framing the assessment u/s 153C/144 and the order is neither erroneous nor prejudicial to the interest of revenue as contemplated. In the written submission filed before us it has been men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revaluation amount of ₹ 6,99,30,590/- has been duly considered and then disallowed by AO in para 5 & 6 of his order this income has been taxed in the hands of two retiring partners Shri Pawan Lashkary and Shri Jitendra. 2.7 In case of Pawan Lashkary, addition was confirmed in first appeal by CIT(A); in assessee's 2nd appeal ITAT has deleted the addition for the reason stated in para 14 to 15 of the order u/s 263. Against this order of the ITAT, the department is in appeal before High Court. 2.8 In case of Jitendra Agarwal, addition is deleted by CIT(A) against which department is in appeal before ITAT (ITA No. 144/JP/13) which is pending. It is contended that gamut of these facts and circumstances demonstrate that ld. AO has taken a considered view that the revaluation amount is taxable in the hands of the retiring partners and claim has been disallowed in the hands of the firm. AO's impugned order cannot be held to be erroneous or prejudicial to the interest of the revenue merely because ld. CIT holds another possible view on the issue , more particularly when issue in the case of Pawan Lakshary pending in appeal before the Hon'ble High Court. 2.9 Section 263 is not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011) 341 ITR 166 (Delhi) (HC) PradeepBandhu Vs. CIT (2013) 81 DTR 289 (Jd) (Trib.) Manish Kumar Vs. CIT 134 ITD 27/ 17 ITR (Trib.) 324 (Indore)(Trib.) It is contended that there being neither error in the order of ld. AO nor any prejudice to the interest of revenue, 263 order may be quashed. 2.13 Ld. DR on the other hand vehemently contends that the noncooperation of the assessee is writ large on the record. The impugned assessment is not a simple case as it has a history of search and is consequent thereto. Notice u/s 153C for filing statutory return was firstly delayed to gain time and was filed after a considerable gap. Notice u/s 143(2) given by ld. AO for opportunity of hearing and submitting necessary documents also was refused to be accepted by the assessee, which is not disputed before CIT. AO himself has taken adverse view about the non-cooperation from the side of the assessee and proceeded to frame ex parte assessment. In normal circumstances assesses vehemently challenge ex-parte assessment citing various reasons for non-compliance, in this case there is total acceptance of the assessee even to an ex parte assessment. This unusual set of circumstances has its own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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