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The Tax Publishers2012 TaxPub(DT) 2499 (Mum-Trib) : (2012) 047 (II) ITCL 0359 : (2012) 137 ITD 0238 : (2013) 151 TTJ 0394 : (2012) 080 DTR 0180 INCOME TAX ACT, 1961 --Revision under section 263--Erroneous and prejudicial orderRevision on proposal of assessing officer--An assessment order was passed under section 143(3) which included long-term capital gain income. The successive assessing officer sent intimation to CIT for revision of such order under section 263 on the ground that capital gains earned by assessee were short-term and not long-term as determined by assessing officer. CIT revised the order on the ground that it was erroneous and prejudicial to the interest of revenue. Assessee, however, pleaded that it had furnished full details which were duly examined by assessing officer and therefore, the revision order was not sustainable. Held: assessing officer had called for all the details and made necessary enquiry. It cannot be held that the enquiry was inadequate as complete details were provided to assessing officer. It was a clear case of change of opinion, that too, on a proposal sent by successive assessing officer and not on suo motu action of CIT. CIT himself did not apply his mind. Therefore, the action to invoke revision proceedings under section 263 was bad in law and could not be sustained. Order passed under section 143(3) was upheld. Income Tax Act, 1961 Section 45 Income Tax Act, 1961 Section 263 IN THE ITAT MUMBAI BENCH B R.S. SYAL, A.M. & VIVEK VARMA, J.M. Bina Indrakumar v. ITO IT Appeal No. 4106 (Mum) of 2011 A.Y. 2006-07 15 June, 2012 Section 45, read with section 263, of the Income Tax Act, 1961 - Capital gains - Chargeable as - Assessment year 2006-07 Appellant by : K. Shivram Respondent by : Pravin Varma ORDER *Vivek Varma, J.M.* The appeal is filed by the assessee, against the order passed under section 263 by Commissioner II, Mumbai, dated 29-3-2011, wherein the Commissioner has set aside the order of the assessing officer passed under section 143(3) dated 15-12-2008. 2. The facts of the case are that assessment under section 143(3) was framed in the instant case on a total income of Rs. 19,79,080. This included income from LTCG at Rs. 10,25,078. On the intimation received from the succeeding assessing officer, on the issue of LTCG and excess allowance of deduction under section 80C, proceedings under section 263 were initiated and the Commissioner set aside the order holding that the sale of flats during the year was in fact short term capital gains and not long term as the sale was effected within 36 months of their acquisition. He, therefore, held that the order passed by the assessing officer dated 15-12-2008, wherein the assessing officer had accepted the sale of flats by the assessee to be LTCG, was erroneous and prejudicial to the interests of the revenue. 3. The Authorised Representative appearing on behalf of the assessee explained the facts of the case, and pointed out that the revision proceedings are on two issues, i.e. (a) understatement to the extent of Rs. 11,89,558 on account of capital gains and (b) excess deduction under section 80C of the Act. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2012 TaxPub(DT) 2499 (Mum-Trib) : (2012) 047 (II) ITCL 0359 : (2012) 137 ITD 0238 : (2013) 151 TTJ 0394 : (2012) 080 DTR 0180

INCOME TAX ACT, 1961

--Revision under section 263--Erroneous and prejudicial orderRevision on proposal of assessing officer--An assessment order was passed under section 143(3) which included long-term capital gain income. The successive assessing officer sent intimation to CIT for revision of such order under section 263 on the ground that capital gains earned by assessee were short-term and not long-term as determined by assessing officer. CIT revised the order on the ground that it was erroneous and prejudicial to the interest of revenue. Assessee, however, pleaded that it had furnished full details which were duly examined by assessing officer and therefore, the revision order was not sustainable. Held: assessing officer had called for all the details and made necessary enquiry. It cannot be held that the enquiry was inadequate as complete details were provided to assessing officer. It was a clear case of change of opinion, that too, on a proposal sent by successive assessing officer and not on suo motu action of CIT. CIT himself did not apply his mind. Therefore, the action to invoke revision proceedings under section 263 was bad in law and could not be sustained. Order passed under section 143(3) was upheld.

Income Tax Act, 1961 Section 45

Income Tax Act, 1961 Section 263

IN THE ITAT MUMBAI BENCH

B R.S. SYAL, A.M. & VIVEK VARMA, J.M.

Bina Indrakumar v. ITO

IT Appeal No. 4106 (Mum) of 2011

A.Y. 2006-07

15 June, 2012

Section 45, read with section 263, of the Income Tax Act, 1961 - Capital gains - Chargeable as - Assessment year 2006-07

Appellant by : K. Shivram

Respondent by : Pravin Varma

ORDER

Vivek Varma, J.M.

The appeal is filed by the assessee, against the order passed under section 263 by Commissioner II, Mumbai, dated 29-3-2011, wherein the Commissioner has set aside the order of the assessing officer passed under section 143(3) dated 15-12-2008.

2. The facts of the case are that assessment under section 143(3) was framed in the instant case on a total income of Rs. 19,79,080. This included income from LTCG at Rs. 10,25,078. On the intimation received from the succeeding assessing officer, on the issue of LTCG and excess allowance of deduction under section 80C, proceedings under section 263 were initiated and the Commissioner set aside the order holding that the sale of flats during the year was in fact short term capital gains and not long term as the sale was effected within 36 months of their acquisition. He, therefore, held that the order passed by the assessing officer dated 15-12-2008, wherein the assessing officer had accepted the sale of flats by the assessee to be LTCG, was erroneous and prejudicial to the interests of the revenue.

3. The Authorised Representative appearing on behalf of the assessee explained the facts of the case, and pointed out that the revision proceedings are on two issues, i.e. (a) understatement to the extent of Rs. 11,89,558 on account of capital gains and (b) excess deduction under section 80C of the Act.