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TMI Blog2024 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ' for short] in ITA No. 215/ AHD/2022-for A.Y. 2017-2018. "(i) Whether the Appellate Tribunal has erred in setting aside the order u/s. 263 of the Income Tax Act, 1961 despite non verification of the claim in respect of the Capital Gain? (ii) Whether the decision of Appellate Tribunal is perverse on facts and in law in not upholding the Order u/s. 263 of the Income Tax Act, 1961, dated 31.03.2022 which is based on wrong computation of the income by Assessing Officer under the head Capital Gain by treating the net capital gain of Rs. 2,02,85,196/- to be Long Term Capital Gain, ignoring the provisions of Section 50 of the Income Tax Act, 1961?" 2. The Principal Commissioner of Income Tax ('PCIT' for short) issued notice under section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain as long-term capital gain but the amount of Rs. 2,02,85,196/- offered by the assessee as short-term capital gain is charged at the tax rate applicable to the short-term capital gain and not long-term capital gain. It was also pointed out by the assessee that there is no loss to the Revenue and therefore, the assessment order though may be erroneous, it is not prejudicial to the interest of the Revenue. 6. The PCIT, however, passed the order under section 263 of the Act, 1961 which was challenged by the assessee by filing the appeal before the Tribunal. The Tribunal, after considering the facts of the case, allowed the appeal filed by the assessee observing as under: "6.2 It is clearly evident that the ld. PCIT has recorded no infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex court affirming this proposition of law in the case of Commissioner of Income Tax vs V.S. Dempo Company Ltd.(2016) 74 taxmann.com 15 (SC), was also placed before us, along with other decisions of High Courts and the ITAT holding so. 6.4 Surely therefore there is complete absence of finding of any error by the Ld. PCIT in the order of the AO with respect to the issue involved. Also the assessee has demonstrated before us its claim being in accordance with law, which has remained uncontroverted by the Ld. DR. Therefore we are in agreement with the Ld. Counsel for the assessee that the AO had allowed the claim taking a plausible view on the issue and in such circumstances there is no scope for invocation of revisionary powers w/s 263 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Raval for the appellant tried to submit that the PCIT was justified in passing the impugned order while invoking the provision of section 263 of the Act, 1961 as the Assessing Officer has treated short-term capital gain as long-term capital gain in the assessment order. He invited the attention of the Court to page 33 of the paper book in the computation of income made by the Assessing Officer which shows that "income from long-term capital gain". It was therefore submitted that once the Assessing Officer has committed an error by not treating the long-term capital gain as short-term capital gain though declared by the assessee as a short-term capital gain, the order was erroneous and prejudicial to the interest of the Revenue. 8. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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