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TMI Blog2021 (12) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the aforesaid evidence, wherein the assessee has clearly demonstrated that the land under question was being used for agriculture purpose, therefore, we are of the view that the assessing officer has taken a reasonable and plausible view, which cannot be branded as erroneous. Since, the assessing officer has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of Assessing Officer to bring on record the even correct facts or non-conduct of enquiry verification of facts, is concerned, we find that the assessing officer made requisite investigation before allowing relief to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was completed under section 143(3) on 20.09.2016. Subsequently, the assessment order was revised by Ld. PCIT by exercising his jurisdiction power under section 263. Before revising the assessment order, the Ld. PCIT issued show cause notice under section 263 dated 23.02.2020, fixing the hearing on 23.01.2020. 3. In the show cause notice, the Ld. PCIT identify the issue that during the year under consideration, the assessee sold land at block No. 137, Vadod Olpad, Surat for a consideration of ₹ 2.14 crores. The assessee claimed deduction under section 54B against the Long Term Capital Gains (LTCG) earned thereon, on purchase of another agriculture land at Ved Karada, Surat. The assessee purchased another agricultural land within a period of two years, from the date of transfer and that the fact regarding utilization of land for agricultural activities before transfer remained to be verified properly. Thus, on their aforesaid observation, Ld. PCIT took his view that assessment order passed by Assessing Officer without proper verification which should have been made on the aforesaid issue, which prima facie rendered order erroneous in so far as prejudicial to the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to conclude that portion of the land on which no agricultural activity was being done on the date of visiting of inspector, were used for agricultural activities. It was also held that the contention of the assessee is without any evidence and is not sufficient to conclude that entire land was used for agricultural purpose prior to date it was sold. As per the provision of section 54B, the Assessing Officer could verify the related direct evidence from the local authority s e.g. extract of 7/12 or would have brought on record including enquiry through GPS position in Goggle earth, Vikimapia or through other agencies like ISRO. The Assessing Officer did nothing to sort out the enquiry to verify the assertion of the assessee. The Ld. PCIT held that in absence of details narrated above there was failure on the part of Assessing Officer to bring on record the even correct facts or non-conduct of enquiry verification of facts. The Ld. PCIT held that assessment order dated 22.11.2017 passed under section 143(3) is erroneous in so far as prejudicial to the interest of revenue and set-aside the same with the direction to complete the assessment de novo after considering his observation. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd Vs CIT (2017) 84 taxmann.com293. 8. On the other hand the Ld. CIT-DR for the revenue supported the order of Ld. PCIT. The Ld. CIT-DR for the revenue submits that during the assessment the assessing officer simply accepted the submissions of the assessee. The assessing officer has not conducted proper inquiries like to verify direct evidence from the local authority s e.g. extract of 7/12 or enquiry through GPS position in Goggle earth, Vikimapia or through other government agencies. The Ld. CIT-DR submits that the assessment order passed by the assessing officer is erroneous as the same was passed without making due verification of fact in allowing exemption under section 54B, and in so far as prejudicial to the interest of revenue and prayed to uphold the order passed by Ld. PCIT. 9. In rejoinder submission, the ld.AR of the assessee submits that in show cause notice under section 263 of the Act issued by the ld. PCIT, it is clearly discernible that the ld. PCIT identified issues, which was examined by assessing officer in the notice issued dated 15.11.2017 by assessing officer. No new issues are identified by ld. PCIT. The ld. PCIT has not made any enquiry of his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law. (emphasis added by us) 12. Further, Hon ble Bombay High Court in CIT Vs Gabriel India Ltd (233 ITR 108 Bom /71 Taxman 585) held that the power of suo-motu revision under sub-section (1) of section 263 is in the nature of supervisory jurisdiction and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the revenue. But that by itself will not be enough to vest the Commissioner with the power of suo-motu revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to the interests of the revenue, then also the power of suo-motu revision cannot be exercised. Any and every erroneous order cannot be the subject-matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. Therefore, in order to exercise power under section 263(1) there must be material before the Commissioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Court in para 22 of its order on the objection of the revenue that there is no discussion of the issue in the assessment order held that the contention on behalf of the revenue that the assessment order does not reflect any application of mind as to the eligibility or otherwise under section 80-I of the Act requires to be noted to be rejected. An assessment order cannot incorporate reasons for making/granting a claim of deduction. If it does so, an assessment order would cease to be an order and become an epic some. The reasons are not far to seek. Firstly, it would cast an almost impossible burden on the Assessing Officer, considering the workload that he carries and the period of limitation within which an order is required to be made; and, secondly, the order is an appealable order. An appeal lies, would be filed, only against disallowances which an assessee feels aggrieved with. 14. Further, Hon'ble Madras High Court in CIT Vs Mepco Industries Ltd., (2007) 207 CTR 462 (Madras) held that when two views are possible on an issue and it is not the case of the Commissioner that the view taken by Assessing Officer is not permissible in law, Commissioner cannot invoke his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. Similar view has been taken by Hon ble Jurisdictional High Court in CIT Vs Nirma Chemical Works Ltd (supra). 16. So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of Assessing Officer to bring on record the even correct facts or non-conduct of enquiry verification of facts, is concerned, we find that the assessing officer made requisite investigation before allowing relief to the assessee. The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, in nothing but change of opinion. It is settled position in law that no revision of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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