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TMI Blog2020 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is aggrieved regarding the revisionary jurisdiction undertaken by the Ld. Pr. Commissioner of Income Tax u/s.263 of the Income Tax Act, 1961 (hereinafter referred to as "the Act‟) and that the facts and issues for both these appeals are identical. 3. The Ld. DR conceded to these arguments of the Ld. AR on facts. 4. After hearing the submissions of both the parties herein, the facts being similar, grounds common, both these cases were heard together and disposed of vide this consolidated order. The Ld. AR of the assessee further submitted that ITA No.422/PUN/2019 for assessment year 2011-12 may be taken as lead case for deciding these appeals. ITA No.422/PUN/2019 ( Shri Nilesh Khodidas Patel) A.Y.2011-12 5. The facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of the re-assessment proceedings, it was contended before the Assessing Officer that the interest has not been claimed as revenue expenditure and has been capitalized in the cost of assets. Placing reliance on the decision of the Pune Bench of the Tribunal in the case of S. Balan Alias Shanmugam Balkrishna Chettair Vs. DCIT (2009) 120 ITD 469, it was claimed that the assessee is entitled to claim interest as cost of capital asset for computation of capital gains. The Assessing Officer accepted the said contention and accepted the returned income while finalizing the assessment proceedings u/s.143(3) r.w.s.147 of the Act. 5.2 The Pr. Commissioner of Income Tax on perusal of the materials available on records, noticed that no tangi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less, it is still an opinion formed with reasons and verification and therefore, assessment order cannot be made a subject matter of revisionary jurisdiction vide order u/s.263 of the Act stating that the same is erroneous so far as it is prejudicial to the interest of the revenue. 7. Per contra, the Ld. DR strongly supported the order passed u/s.263 of the Act by the Ld. Pr. Commissioner of Income Tax for the reasons that as evident from the notice u/s.263 of the Act, the only purpose of the Ld. Pr. Commissioner of Income Tax for passing order was that the nexus between particular property acquired and the loan amount obtained for such purpose, was not proved and the interest paid on such loan claimed as cost of improvement in the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained for such purpose by the assessee. Thereafter, the assessee has also claimed interest on such loan as cost of improvement of the property. However, in the entire order of the Assessing Officer, there is no discussion or examination of facts wherein, he has categorically given findings through enquiry that such a nexus whether at all exists or not. In both these cases before us as rightly pointed out by the Ld. DR that the only reason of the Ld. Pr. Commissioner of Income Tax for passing order u/s.263 of the Act was that these aforestated facts were not examined by the Assessing Officer before accepting the returned income and finalizing the assessment. 9. That before us, three hearings were accorded to the Ld. AR of the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Assessing Officer has accepted a particular contention/issue without any enquiry or evidence whatsoever, the order is erroneous and prejudicial to the interest of the Revenue. 11. In the case of Malabar Industrial Co. Ltd. Vs. CIT, Kerala State, 243 ITR 83 (SC), the Hon‟ble Apex Court while upholding the judgment of the Hon‟ble High Court observed that "Indeed, the High Court recorded the finding that the ITO failed to apply his mind to the case in all perspective and the order passed by him was erroneous. Therefore, the Hon'ble High Court has rightly held exercise of the jurisdiction by the Commissioner u/s.263 was justified." Taking the totality of facts and circumstances and judicial pronouncements into consideration, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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