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TMI Blog2021 (11) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... ter making necessary inquiries. We agree with the view of the ITAT that the order of the AO cannot be branded as erroneous merely because the order does not contain the details which Principal Commissioner feels should have been included. Principal Commissioner cannot decide how elaborate an order of the AO should be. Where the AO, during the scrutiny assessment proceedings, has raised a query which was answered by the Assessee to the satisfaction of the AO but the same was not reflected in the AO by him, the Commissioner cannot conclude that no proper inquiry with respect to the issue was made by the AO and enable him to assume jurisdiction under Section 263. ITAT has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that questions as pressed raise any substantial questions of law. - INCOME TAX APPEAL NO.1570 OF 2017 - - - Dated:- 16-11-2021 - K. R. SHRIRAM AMIT B. BORKAR, JJ . Mr. Suresh Kumar for Appellant. Mr. Madhur Agrawal i/b Mr. Atul K. Jasani for Respondent. P. C. :- 1. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of assessment, the Assessing Officer (AO) did not raise any query nor make any inquiry regarding circumstances in which the seller of land, within 2 months, sold the land for a price 1335% higher than the purchase price. According to Principal Commissioner, the AO simply accepted the transaction as genuine on the basis of papers filed in the course of assessment and therefore, failure on the part of AO to examine the unusual transaction from the point of view of genuineness, rendered the order erroneous and prejudicial to the interest of Revenue. Based on this opinion that the Principal Commissioner had formed, a show-cause notice dated 15/03/2015 was issued calling upon Respondent to show cause as to why the order dated 26/02/2014 should not revised and gain shown as exempt LTCG be taxed as unexplained cash credit under Section 68 of the Act. Respondent contested the revision proceedings and gave detailed explanation for the reason Respondent could fetch such unusual price escalation in the value of the land. The Principal Commissioner once again issued notice dated 20/11/2015 under Section 263 of the Act. In this notice, the Principal Commissioner mentioned that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of, and scope for, urbanization of that area and other relevant considerations specifying in this behalf by notification in the Official Gazette. There has been an amendment to the definition with effect from 01/04/2014 with which we are not concerned for the present. Therefore, 'Capital Asset' means property of any kind held by an Assessee, whether or not connected with his business or profession but does not include agricultural land in India not being land situated in any area within such distance, not being more than 8 kms, from the local limits of any Municipality or Cantonment Board referred to in Item (a) as the Central Government may, having regard the extent of, and scope for, urbanization of that area and other relevant considerations specifying in this behalf by notification in the Official Gazette. 6. Hence, in view of the admitted position, certainly, the land which is the subject-matter of this proceeding, would not fall within the definition of 'Capital Assets'. 7. When it is not disputed that the land concerned would not fall under the definition of capital asset, the question of any capital gains arising also will not arise. Moreo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating from the law . Erroneous assessment refers to an assessment that deviates from the law and is, therefore, invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the Assessing Officer in fixing the amount of valuation of the property. Similarly, erroneous judgment means one rendered according to course and practice of court, but contrary to law, upon mistaken view of law; or upon erroneous application of legal principles. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income Tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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