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TMI Blog2015 (8) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In view of these evidences, it cannot be said that this is a case of lack of enquiry/investigation. On the appraisal of the said plethora of evidences, if the Assessing Officer takes a view which is not in consonance with the view of the learned Commissioner of Income Tax, it cannot give the learned Commissioner of Income Tax the jurisdiction under section 263 of the Act. This is certainly not a case of lack of enquiry, at most, it may be a case of inadequate enquiry, which also to our mind, in the facts and circumstances of the case, does not seem correct. There was some mistake in the Valuation Report of Registered Valuer, which the assessee enclosed with the return of income, also does not advance the case of the Department. It is a case in which on the basis of evidences filed by the assessee, the Assessing Officer forms an opinion and then makes the assessment. There is nothing illegal in this. There is no law which says that the Valuation Report has to be drawn in a certain specific fashion. The valuation is an art and any Valuation Officer who is registered by the Government to make such kind of valuation can make his own basis for valuing the property. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .19 kanals on 12.8.1981 for consideration of ₹ 22,500/- including expenses on stamp duty which comes to ₹ 10,274/- per kanal. In view of purchase of land per kanal as on 12.8.1981 @ ₹ 10,274/-, the rate for indexation of land as on 1.4.1981 was required to be adopted at ₹ 10,274/- per kanal as against ₹ 37,090/- per kanal taken by the assessee and accepted by the Assessing Officer for the purpose of calculation of capital gain/loss. On this basis, the learned Commissioner of Income Tax was of the view that there was a Long Term Capital Gain of ₹ 41,43,959/-, which was required to be assessed by the Assessing Officer as against Long Term Capital Loss of ₹ 1,83,059/- accepted while completing the assessment proceedings. In view of this, the learned Commissioner of Income Tax held that there was apparent discrepancy and lack of proper investigations during the assessment proceedings. 3. In view of the notice issued under section 263 of the Act, the assessee made submission before the learned Commissioner of Income Tax that the market price of land as on 1.4.1981 was taken after taking valuation from expert and report of such valuation was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income Tax Act, 1961 after perusing for complete details as even filed alongwith the Income Tax Return and after due application of mind and perusing the concerned provisions of the Income Tax Act, 1961. 3. That the Ld. CIT is not justified in setting aside the order passed u/s. 143(3) while remanding the matter to A.O., for reconsideration without allowing inspection of the Assessment Record to the appellant which is against the principles of natural justice and of law. 4. That without prejudice to above grounds of appeal the appellant disputes the very initiation of the proceedings u/s. 263 of the Income Tax Act, 1961 as bad in law and thereby setting aside a well versed orders of the A.O. to be decided afresh. 5. That the appellant craves leave to add, amend or delete any of the grounds of appeal on or before the disposal of the present appeal. In substance, all the grounds are challenging the validity of jurisdiction of learned Commissioner of Income Tax under section 263 of the Act. 6. The learned counsel for the assessee while arguing the case both on the legality of order made under section 263 of the Act as well as on merits, took us through var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page 45 and 45-A of the Paper Book, whereby specific query regarding the transaction of said property was made. The reply to the said notice was made by the assessee as on 29.7.2010, the copy of which is placed at page 46 of the Paper Book. It was stated at the Bar that these proceedings initiated by the notice under section 154 of the Act has been dropped since no order has been passed till date. All these documents were shown to us to emphasize the fact that the Assessing Officer was seized of the whole transaction taken by the assessee. He had specifically asked the assessee for explanation of the same, which was duly replied. The Assessing Officer has applied his mind in taking a view. The learned Commissioner of Income Tax cannot assume jurisdiction under section 263 of the Act on difference of opinion. 8. The learned D.R relied upon the order of the learned Commissioner of Income Tax made under section 263 of the Act and submitted that the assessment was made in a casual manner. There is no discussion of the said transaction in the assessment order, nor there is any office note appended to this effect to the assessment order. As per the learned D.R., the Valuation Repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance the case of the Department. It is a case in which on the basis of evidences filed by the assessee, the Assessing Officer forms an opinion and then makes the assessment. There is nothing illegal in this. There is no law which says that the Valuation Report has to be drawn in a certain specific fashion. The valuation is an art and any Valuation Officer who is registered by the Government to make such kind of valuation can make his own basis for valuing the property. In the present case, the Valuation has been done by a Registered Valuer, which the Assessing Officer has perused and formed an opinion. No specific procedure has been prescribed under the Statute as to how the Assessing Officer has to react in such situation. 11. An order can be revised under section 263 of the Act by the learned Commissioner of Income Tax only if it satisfies the twin conditions of being erroneous as well as prejudicial to the interests of Revenue. In the present case, we find no error in the order of the Assessing Officer. Our view gets strengthen by the judgment of the Hon'ble Apex Court in the case of Malabar Industrial Co. Ltd. v. CIT (2000) 243 ITR 83 (SC), wherein it was held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with law. 15. In the present case, the only dispute is with regard to valuation of sold property as on 1.4.1981. As per the assessee, the value taken is in accordance with the report of the Registered Valuer, which the Assessing Officer accepted while the learned Commissioner of Income Tax wanted to substitute the same to the value of some other property purchased by the assessee itself a few months later. It is a matter of fact that the Assessing Officer being an Adjudicating Officer has to form an opinion on the basis of evidences, which he has duly done. If the learned Commissioner of Income Tax on the same set of evidence draws different opinion, it being a question of fact, does not give him jurisdiction to revise the same under section 263 of the Act. This is certainly a case of difference of opinion between the Assessing Officer and Commissioner of Income Tax. The provision of section 263 of the Act cannot be invoked in said circumstances. 16. The case law relied on by the learned D.R. in Arvee International v. Addl. CIT (2006) 101 ITD 495 (Mum-Trib) is distinguishable on facts as in that case, there was a finding of fact that the order of the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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