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TMI Blog2021 (8) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, used TVs, fridge, dining table etc. are personal effects or capital assets is debatable issue. Since the issue is debatable, the AO has taken one of the possible view and accepted claim of the assessee that they are in the nature of personal effects and not liable for tax. The view taken by the AO may not be correct, but the Principal CIT cannot assume jurisdiction to review the assessment order u/s.263 of the Act, unless the view taken by the AO is unsustainable in law, because the Principal CIT cannot impose his view on the AO . Therefore, we are of the considered view that once an issue was subject matter of assessment proceedings by the Assessing Officer in original assessment proceedings, then there is no scope for the Principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. 3. The case has been subsequently taken up for revision u/s.263 of the Income Tax Act, 1961, on the ground that assessment order passed by the Assessing Officer is erroneous and prejudicial to the interests of revenue, insofar as issue of computation of long term capital gain from sale of property and hence, issued show-cause notice and called upon the assessee to explain as to why assessment order passed by the Assessing Officer shall not be revised for the reasons stated in show-cause notice. In response, the assessee submitted that it had sold a property for consideration of ₹ 70 lakhs along with additional consideration of ₹ 22 lakhs for sale of movable assets of fixtures with its property, which is part and parcel of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is a fit case to invoke the provisions of Sec. 263 of the Act. Therefore, in conclusion the Assessing Officer has failed to make a complete verification with respect to the aspects as discussed supra and had passed the Assessment Order u/s 143(3) of the Act, without proper diligent application of mind and enquiry, and hence in my considered opinion the assessment order so passed is both erroneous and prejudicial to the interest of the revenue. 8. Thus in view of the narrated facts of the case, it is amply clear that the total consideration received for the property has been split to avoid payment of stamp duty. Tax planning is one of the recognized ways of saving income-tax. However, in the guise of tax planning no attempt should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on behalf of the assessee before the Tribunal that what was sold was sale of personal effects and, therefore, no addition was warranted. The Tribunal repelled such contention raised on behalf of the assessee because the personal effects would not be included in the capital asset under section 2(14)(ii). The Tribunal, thus, held that the excess receipt had to-be considered under the residuary clause Income from other sources and it was rightly taxed so by the Assessing officer. 9. In the instant case the assesse has not been able to establish the genuineness of the transaction with regard to sale of used movables in the revision proceedings and thus applying the decision rendered in Devinder Kumar case (supra) the sale considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers the Principal CIT to revise assessment order passed by the Assessing Officer, if he feels that assessment order passed by the Assessing Officer is erroneous, insofar as it is prejudicial to the interests of the revenue. From a plain reading of section 263 of the Act, it is very clear that before exercising his jurisdiction u/s.263 of the Act, the Principal CIT should satisfy himself that the Assessing Officer has passed order which is erroneous and prejudicial to the interests of revenue. Unless the Principal CIT proves that order passed by the Assessing Officer is erroneous or which is not passed in accordance with law in right perspective of facts, the Principal CIT cannot revise assessment order passed by the Assessing Officer. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer has taken one of the possible view and accepted claim of the assessee that they are in the nature of personal effects and not liable for tax. The view taken by the Assessing Officer may not be correct, but the Principal CIT cannot assume jurisdiction to review the assessment order u/s.263 of the Act, unless the view taken by the Assessing Officer is unsustainable in law, because the Principal CIT cannot impose his view on the Assessing Officer . Therefore, we are of the considered view that once an issue was subject matter of assessment proceedings by the Assessing Officer in original assessment proceedings, then there is no scope for the Principal CIT to revise assessment order by holding that assessment order passed by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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