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TMI Blog2021 (9) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act by way of a show cause notice dated 22.02.2021 served upon the assessee, which is reproduced hereunder: "Subject: Notice for Hearing in respect of Revision proceedings u/s. 263 of the THE INCOME TAX ACT, 1961 - Assessment Year 2016-17. In this regard, a hearing in the matter is fixed on 01/03/2021 at 11:00 AM. You are requested to attend in person or through an authorized representative to submit your representation, if any along with supporting documents/information in support of the issues involved (as mentioned below). If you wish that the Revision proceeding be concluded on the basis of your written submissions/representations filed in this office, on or before the said due date, then your personal attendance is not required. You also have the option to file your submission from the e-filing portal using the link: incometaxindiaefiling.gov.in Please refer to the above. On examination of your Income Tax records for the above assessment year, I find that the order passed u/s. 143 on04/09/2018of the Income tax Act, 1961 is erroneous in so far as it is prejudicial to the interest of revenue in the following manner: - The order in the aforesaid case is erroneous so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Subject to the provision of Sub-section (4) where, in the case of assessee, being an Individual or Hindu Undivided Family, the Capital Gain arises from transfer of any Long Term Capital Asset, not being a Residential House, and the assessee has, within a period of one year before or (two Years) after the date on which the transfer took place purchased, or has within a period of three years after that date (constructed, one Residential House in India) (hereafter in this section referred to as the new asset), then Capital Gain should be dealt with in accordance with the following provisions of the section. Since, the undivided share of the land of each flat is 559.5 Sq. ft., for which the total cost of investment of Rs. 10431764/-, the assessee will be entitled for one flat, the value of which will be Rs. 5251882/- accordingly after reworking the capital gain comes to Rs. 1,37,08,337/- The FINANCE (No. 2) BILL, 2014 - Memorandum explaining the Provisions relating to direct taxes is reproduced below for sake of clarity: The existing provisions contained in sub-section (1) of section 54, inter alia, provide that where capital gain arises from the transfer of a long-term capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to correctly tax the income of the assessee in the return of income and therefore, the assessment order passed u/s. 143 of the Act is erroneous in so far as it is prejudicial to the interest of revenue. Therefore, in exercise of the powers conferred on me by section 263 of the I.T. Act, 1961, I propose to suitable revise the order u/s. 263, which may include setting aside the order as such. Accordingly, an opportunity is being extended to explain your case along with details, documents and necessary evidences. An absence of any submission or reply shall lead to the conclusion that you have no objection for the proposed action and the proceedings shall be finalized accordingly. Your submission/reply may kindly be sent through the e-mail on or before 01/03/2021. If you wish to appear personally or through your authorized representative, personal hearing may kindly be availed on 01/03/2021 at 11:00 am in the office of PCIT-1, Central Revenue Building, Civil Lines, Raipur." 4. As per the revisional order, the CIT(A) ultimately concluded that the assessee is eligible for deduction under s. 54F of the Act in respect of only one residential unit and two adjoining flats canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SB) and followed thereafter in Kamal Murlidhar Mokashi vs. ITO (2019) 179 ITD 265 (Pune), Dinanath Badrinath Chhabra vs. ITO in ITA No. 7111/Mum/2012, ITO (Intl. Tax) vs. Kavita Gupta (2018) 52 CCH 308 (Mum. Trib.) & ACIT vs. Sanjay B. Pahadia (2017) 49 CCI 17 (Mum. Trib.). 5.2 It was further pointed out that issue, in any case, is debatable and the AO has taken a view plausible in law and therefore, the jurisdiction under s. 263 of the Act does not lie. It was also contended that where there is no scope for any further enquiry in the matter, the PCIT could not have set aside the assessment order so framed without pointing out the exact nature of enquiry remained to be carried out after some minimal enquiry on his part. Once, an examination of the issue was carried out by the PCIT, he could not differ from the judicial view taken by the AO. The learned counsel thus urged that the assumption of jurisdiction under s. 263 of the Act is patently wrong and opposed to the judicial understanding available on the subject. He accordingly urged that such unsuitable revisional order requires to be quashed. 6. The learned CITDR for the Revenue, on the other hand, relied upon the revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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