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TMI Blog2022 (10) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... lding nor any development activity was made. This factual finding that the transaction was a solitary transaction and no development activity was made, is in consonance with the facts recorded by the AO. The only difference is, AO has taken a view that for any purchase or sale of a land, assessee is liable to pay the capital gains tax and the Commissioner has taken a different view. In view of the authority in Malabar Industrial Company Limited. [ 2000 (2) TMI 10 - SUPREME COURT] merely because two plausible views are available and the AO has taken one view, the jurisdiction u/s 263 cannot be exercised. Invoking Section 263 in the facts and circumstances of the case was erroneous. Consequently, the first question as to whether the Tribunal was right in holding that there was no infirmity in the order of revision, requires interference and the said finding needs to be set-aside. Whether the Tribunal was right in holding that no enquiry was made by the AO during the original assessment proceedings? - In view of the admitted facts that the land was purchased and sold without any development, no elaborate enquiry was required and the AO has noted the facts required for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on 23.04.2004. Assessee's case is, due to recession in IT Industry and paucity of funds, construction of Tech park could not be taken up and ultimately sold the land on 14.02.2008. Assessee returned its income for A.Y. 2008-09. The Assessing Officer vide order dated 28.10.2010 assessed Rs.6,54,32,043/- as tax payable and by adding surcharge, education cess and interest, a total demand of Rs.8,50,38,928/- was made. 4. On 05.03.2013, the CIT(A), Bangalore IV, passed an order under Section 263 of the Income Tax Act, 1961 ('IT Act' for short), setting-aside the Assessment order and remanded the matter to the Assessing Officer for fresh assessment. Pursuant thereto, the Assessing Officer passed fresh order on 18.04.2013 and completed the assessment by treating the income offered under the head 'Capital gains' as income from business. Assessee challenged the said order as also the order passed under Section 263 of the IT Act before the ITAT in ITAs Nos.596(Bang)/2013 and 42(Bang)/2015. The ITAT dismissed the appeal filed against order under Section 263 of the IT Act and remanded the matter to CIT(A) to decide the case on merits. 5. Shri. Suryanarayana, submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer. 9. In Gabriel India Ltd., the Bombay High Court has held as follows: 11. 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 circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. 10. This Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kerage to Sadhawani International 28,09,000/- 3,18,260/- 15. None of the above expenditure are towards development of the land. It is relevant to note that the Firm was constituted in March 2004 and the property was purchased in April 2004 and sold on February 14, 2008. The expenses recorded above are towards interest, professional charges paid to Advocate, the consultancy firm and the brokerage. The said expenditure works out to Rs.2,01,78,900/-. The expenditure of Rs.2,67,540/- upon which the Revenue is placing reliance upon, is recorded in the order passed by the ITAT in para 6. The ITAT has also noted that certain expenditure was on account of professional and consultancy charges and it was shown as net loss for that year. A careful analysis of the facts of the case indicate that although the property was purchased with an intention to construct a Tech Park, the same was sold for want of funds. No development whatsoever was made by the assessee. There is no expenditure incurred for anything other than for interest, professional charges and brokerage. This aspect has been considered by the Assessing Officer and he has taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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