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TMI Blog2022 (7) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... record and have not been upset. The revisionary power u/s 263 of the Act cannot be allowed to be exercised in a casual arbitrary manner. It is incumbent upon the ld. PCIT to point out the error in the order and that too such an error which can be said to be prejudicial to the interests of the Revenue. Revenue has dismally failed on this count. Accordingly, in the said factual background where we find no evidence for supporting the conclusion that only 1/3rd share belonged to the assessee. The exercise of power by the PCIT in these peculiar facts cannot be upheld. The case laws relied upon by the ld. PCIT in the order and the ld. CIT-DR including the one cited by the AR, accordingly, we hold do not warrant any discussion. At the very threshold itself, we have seen that the issue being purely factual, presumptions cannot be allowed to prevail and taint the facts on record. Since much reliance for the Revenue has been placed upon the decision in the case of Kamal Kant Kamboj [ 2017 (8) TMI 285 - PUNJAB AND HARYANA HIGH COURT] we find on a careful reading of the same and hold that it does not have any applicability to the facts of the present case. In the facts of the said decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y looked into and as such the assessment order passed was neither erroneous not prejudicial. 4. That the Ld. Commissioner of Income Tax has erred in failing to consider the various replies and submissions placed on record in proceedings before her in the correct perspective which is arbitrary and unjustified. 5. That the assessment order having been passed by the Assessing Officer after due application of mind and taking into consideration the various replies and material on record, the action resorted to by the Commissioner of Income Tax is unwarranted and uncalled for. 6. That the order of Commissioner of Income tax is erroneous, arbitrary, opposed to the facts of the case and is unsustainable in law. 2. The relevant facts of the case are that the assessee e-filed his return on 05.08.2016 declaring an income of Rs. 4,21,230/-. The income as per the assessment order passed u/s 143(3) and had been declared under the head 'salaries' and income from other sources . The said returned income was accepted by the AO. This order was set aside by ld. PCIT u/s 263. The record shows that the ld. PCIT makes a reference to the fact that the assessee's case was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices issued by the AO on different dates in the e-proceedings are available. The replies of the assessee similarly are also available on the e-portal. It was submitted that these are supported with Annexures and copies of these queries with replies with documentary evidences are all available from pages 4 to 161. At pages 1 to 3 of the Paper Book, it was submitted, is the copy of the return filed by the assessee and the computation of total income. At pages 162 onwards is the copy of the notices issued by the ld. PCIT; replies of the assessee and copies of online request under RTI; Copy of the order u/s 7(1) of RTI Act 2005; copy of online appeal under RTI and reply thereto are all available from pages 169 to 186 at Sr. Nos. 30 to 34. In the very same Paper Book from Sr. No. 2 to Sr. No. 26 i.e. page 4 to page 161 is the evidence of the queries raised in the e-proceedings.; the queries raised and replies made to the AO. Accordingly, on the basis of this evidence on record, it was his submission that there can be no doubt in the minds of anyone about the fact that all necessary and due enquiries made by the AO before the passing of the order. Inviting attention to Paper Book pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 13.04.2018 issued by the State Bank of India in respect of sanction f home loan of Shri Sukhbir Singh s/o of Shri Jangpal Singh. 33 d. Payment details and source for purchase of property. 34 10. Attention was invited to Paper Book page 35 wherein the assessee has made available, Copy of the Sale Deed dated 21.12.2015 vide acknowledgement dated 15.04.2018. This is available from pages 36 to 43 before us. Attention was also invited to copy of the notice dated 10.05.2018 also issued u/s 142(1) of the Act requiring the assessee to make his reply on the issues. These are appended at pages 44-45 wherein reply is at paged 46. The following reply of the assessee was highlighted: Dear sir, Please condone the delay in replying the notice as I am busy in some family matters. I am Jangpal singh is retired pensioner and do not have any business so do not have any books of accounts. I have already deposited the all documents demanded by you in my last submission on 16 April 2018. 11. Similarly, it was submitted that the e-proceedings continued wherein the entire details and annexures enquired into were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted at page 4 of the impugned order wherein the assessee has responded in para 3 of the said reply stating that the presumption drawn that the assessee is holding 1/3rd share in the property is incorrect on facts. This presumption of the department has been stated to be contrary to facts. In the reply, the assessee has claimed that the assessee had invested the entire net sale consideration in purchasing the new house. This submission on facts has not been rebutted. The said claim, it was submitted, had been supported by bank statements made available to the AO as well and were also made available before the ld. PCIT. The reliance placed upon the position of law on the allegation that 1/3rd share belonged to the assessee only, it was submitted, is a presumption contrary to record. All these submissions on facts it was submitted, have been ignored and infact instead of looking into the matter and the issue under consideration, the ld. PCIT passes a casual order duly taking note of the fact that investment of the assessee has been claimed to be of Rs. 1,15,18,000/- at page 6 para 5 of the order and housing loan of Rs. 40 lacs has been taken in the name of the son. Apart from this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is erroneous and prejudicial to the interest of the Revenue. You are therefore requested to show cause as to why the aforesaid order of assessment may not be revised under the provisions of Section 263 of the Income Tax Act, 1961. (emphasis supplied) 15. Attention was again invited to another notice issued by ld. PCIT on 13.03.2021 treating it to be the last opportunity. Attention of the Bench was again invited to the assessee's reply on facts available at Paper Book page 167. For ready reference, the same is reproduced hereunder: Refer to your DIN Notice No: ITBA/REV/F/REV 1/2020-21/1031461029(1) Dated 13-03-2021 relevant to AY 2016-17 to PAN Number ABKPT7336H. In this regard I am submitting my Representation as follows. 1. I had sold a residential Plot No. 227 in Mansa Devi Complex, Sector 6 Urban estate Panchkula in consideration of Rs. 1,28,50,000/- The said plot was allotted to me by HUDA on 10-12-2010 for Rs. 10,83,815/- 2. As per computation, I had earned LTCG of Rs. 97,78,721/- which was claimed as exempt u/s 54F as the entire Net Consideration had been invested in purchasing the Residential House No. 365, Sector 20-A, Chandigarh and go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cleared by various high courts may be detrimental to the natural justice and bring lots of unnecessary harassment to an old age person like me. 17. The ld. AR also made submissions on information sought under the Right to Information Act and inspection of file and the reply, on the basis of which it was his submission that the Revisionary powers were exercised on the basis of Audit Objections etc. These documents are available from page 169 onwards. On the basis of these facts, various arguments were advanced on the fact that the Revisionary powers were exercised on the grounds of audit objection. However, on the merits of the order passed, even otherwise it was his submission on a reading from the Sale Deed that the presumption that the assessee's wife and son had 1/3rd share each is an inference based on no facts. It was submitted that the assessee being a retired pensioner has included the names of his wife and son in the property in order to ensure safety and convenience etc. for the family members in the event of demise of any one. Though various other arguments have been raised by the parties, however, we are of the view that in the peculiar facts of the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signees, executors, successors, legal representatives and administrators) of the other part of this deed. Possibly on account of this fact, the ld. PCIT has presumed and unilaterally drawn a conclusion that each of the purchaser of the property must necessarily have an equal share. This presumption is arbitrary and de-hors facts. A further perusal of specific para 11 at Paper Book page 40 which is a continuation of the Sale Deed wherein the assessee is a purchaser the understanding of the parties declaring the world at large is that the vendees are absolute owners of 100% share of.......... For the sake of completeness, it is extracted hereunder: 11. That the said Vendees have now become the absolute owners of the 100% SHARE OF FREE HOLD RESIDENTIAL HOUSE NO. 365, BUILT ON PLOT NO. 5, STREET-P, SECTOR 20-A, CHANDIGARH, MEASURING 198.33 SQ.YDS., RP NO. 11863, under sale, in full proprietary rights and the said Vendees are now entitled to apply to the Estate Officer, Chandigarh Administration, U.T., Chandigarh and get the ownership of the said house transferred in their (Vendees) names in the records of the Estate Officer, U.T. Chandigarh. 23. We have also seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the present case the Revenue has dismally failed on this count. Accordingly, in the said factual background where we find no evidence for supporting the conclusion that only 1/3rd share belonged to the assessee. The exercise of power by the ld. PCIT in these peculiar facts cannot be upheld. The case laws relied upon by the ld. PCIT in the order and the ld. CIT-DR including the one cited by the ld. AR, accordingly, we hold do not warrant any discussion. At the very threshold itself, we have seen that the issue being purely factual, presumptions cannot be allowed to prevail and taint the facts on record. However, since much reliance for the Revenue has been placed upon the decision of the jurisdictional High Court in the case of Kamal Kant Kamboj (cited supra) we find on a careful reading of the same and hold that it does not have any applicability to the facts of the present case. In the facts of the said decision which was rendered by the jurisdictional High Court, the admitted fact available on record was that the assessee had invested in the property exclusively in the name of his wife. As a result thereof, the exemption for Long Term Capital Gain u/s 54B was held to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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