Shiraz Behram Contractor, Vadodara V. The DCIT, Circle1(2)1, Baroda

ITA 1069/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6933 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M J SHAH
• Keywords: Salary income; Opportunity of being heard; Difference of opinion; Valuation report; Change of opinion; Set aside
• Section: 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.1069/AHD/2016 (ASSESSMENT YEAR : 2009-10) SHRI SHIRAZ BEHRAM CONTRACTOR, SHIPHIDOL, 8, FATEHGUNJ, VADODARA. VS. DCIT, CIRCLE 1(2)1, BARODA. AND I.T.A. NO.1139/AHD/2014 (ASSESSMENT YEAR : 2009-10) SHRI SHIRAZ BEHRAM CONTRACTOR, SHIPHIDOL, 8, FATEHGUNJ, VADODARA. VS. ACIT, CIRCLE 2(2), BARODA. [PAN NO. ACBPC 4149 F] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI M.J. SHAH, A.R. RESPONDENT BY : SHRI UMA SHANKAR PRASAD, SR. D.R. DATE OF HEARING 14 .02.2019 DATE OF PRONOUNCEMENT 03.05.2019 O R D E R PER MS. MADHUMITA ROY - JM: BOTH THE APPEALS FILED BY THE ASSESSEE ARE AGAINST THE ORDER DATED 09.12.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-4, VADODARA UNDER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) ARISING OUT OF THE ORDER DATED 05.01.2015 PAS SED BY THE DCIT CIRCLE - 1(2), BARODA FOR ASSESSMENT YEAR 2009-10 AND THE OR DER DATED 24.02.2014 ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 2 - PASSED BY THE COMMISSIONER OF INCOME TAX-I, BARODA UNDER SECTION 263 OF THE ACT ARISING OUT OF THE ORDERS DATED 28.12.2011 PASS ED BY THE DCIT, CIRCLE - 2(2), BARODA FOR A.Y. 2009-10. SINCE BOTH THE APPEALS RELATE TO SAME ASSESSEE THOS E ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER. ITA NO.1139/AHD/2014 FOR A.Y. 2009-10 : 2. THE BRIEF FACTS LEADING TO THIS CASE IS THIS THA T THE ASSESSEE INITIALLY FILED ITS RETURN OF INCOME ON 20.11.2009 DECLARING TOTAL INCOME AT RS.97,65,659/- WHICH WAS PROCESSED U/S 143(3) OF THE ACT. SUCH INC OME WAS DECLARED BY THE ASSESSEE COMPRISED OF SALARY INCOME, INCOME FROM CA PITAL GAIN AND INCOME FROM OTHER SOURCES, WHICH WAS FINALIZED ON 28.12.20 11 UPON DETERMINATION OF ASSESSED INCOME AT RS.1,02,50,559/- ON VERIFICATION OF THE RECORDS, IT WAS FOUND BY THE LEARNED CIT THAT THE ORDER PASSED BY T HE LEARNED AO WAS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THE FOLLOWING ASPECT: 'WHEREAS IT IS NOTICED THAT IN RESPECT OF LTCG THAT THE ASSESSEE HAD SOLD A PROPERTY AT DEVIKA ON 13.08.2008 FOR RS.6,00,000/-. THE VALUE OF PROPERTY AS 01.04,1981 WAS DETERMINED AT RS.7,57,800/- (VALUE O F CONSTRUCTION 5,01,840/- + VALUE OF LAND 2,56,000/-) BY A PRIVATE VALUER. AFTER GETTING BENEFIT OF INDEXATION, LTCG ON THIS PROPERTY WAS WORKED OUT AT RS.15,89,604/-. THE VALUER HAD VALUED THE CONSTRUCTED STRUCTURE EXCLUDI NG LAND AT RS.5,01,840/-. HOWEVER, AS PER THE VALUATION REPORT AND SALE DEED, THE PROPERTY WAS CONSTRUCTED DURING PORTUGUESE REGIME AND ITS WRITTE N HISTORY IS AVAILABLE ONLY FROM 1944. IT WAS FURTHER NOTICED FROM THE VALUATIO N REPORT, WHERE THE VALUER HAS HIMSELF STATED THAT 'BUNGALOW WAS IN VERY BAD A ND DILAPIDATED CONDITION. IT CANNOT BE REPAIRED WITH MINIMUM EXPENSES. THE CO ST OF RECONDITIONING OF STRUCTURE WILL BE AS GOOD AS BUILDING A NEW STRUCTU RE'. THIS CLEARLY INDICATED THAT IN THE VALUER OWN ADMISSION THE VALUE OF THE S TRUCTURE WAS 'NIL'. AS SUCH, WHILE COMPUTING VALUE OF PROPERTY, IT WAS REQUIRED TO BE TAKEN AS ZERO.' ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 3 - IN THAT VIEW OF THE MATTER, A SHOW-CAUSE DATED 18.1 2.2013 U/S 263(1) WAS ISSUED AGAINST THE ASSESSEE, UPON WHICH THE ASS ESSEE FILED A WRITTEN SUBMISSION ON 11.02.2014, WHEREIN THE ASSESSEE SUBM ITTED AS FOLLOWS: 'I AM IN RECEIPT OF YOUR ABOVE REFERRED NOTICE WHER EIN YOU HAVE MENTIONED THAT AS PER THE VALUATION REPORT, THE IMPUGNED PROP ERTY WAS CONSTRUCTED DURING PORTUGUESE REGIME AND ITS WRITTEN HISTORY IS AVAILABLE FROM 1044. IT WAS FURTHER NOTICED BY YOU FROM THE VALUATION REPOR T THAT THE VALUER HAS HIMSELF STATED THAT 'BUNGALOW WAS IN VERY BAD AND D ILAPIDATED CONDITION. IT CANNOT BE REPAIRED WITH MINIMUM EXPENSES. THE COST OF RECONDITIONING OF STRUCTURE WILL BE AS GOOD AS BUILDING A NEW STRUCTU RE' ON THE BASIS OF ABOVE REMARKS, YOU HAVE ASSUMED THE VALUE OF STRUCTURE AS 'NIL' IN THE MATTER I WOULD LIKE TO HIGHLIGHT THAT FIRST OF ALL VALUATION OF WHOLE PROPERTY IS DONE FO R THE PURPOSE OF VALUATION OF CAPITAL GAIN AND THAT THE DATE OF VALUATION IS 1-4- 1081. WHEREAS THE VALUER REPORT IS DATED 30-1-2009 THAT IS INSPECTION OF THE PROPERTY BY THE VALUER IS 30.01.2009 AND ABOVE REFERRED DESCRIPTION GIVEN BY THE VALUER IS FOR 30-1- 2000 ONLY AND UNDOES NOT RELATE TO THE DATE OF VALU ATION I.E. 1-4-1081. THE VALUER HAS PUT A REMARK OF THE PRESENT CONDITIO N OF THE PROPERTY. HOWEVER, THE VALUATION OF THE PROPERTY, AS PER HIS VALUATION REPORT, IS AS UNDER: CONSTRUCTION COST: RS.5,01,840 LAND AREA: 2,56,000 TOTAL: RS.7,57,840 NET VALUE: RS.7,57,840 AS PER SECTION 48 OF THE I.T ACT, IN CASE OF PROPER TY WHICH IS OWNED BY THE ASSESSEE BEFORE 1-4-1981. THE VALUE OF PROPERTY SHA LL BE TAKEN AS ON 1-4-1981 AND THE SAME SHALL BE INCREASED AS PER COST OF INDE XATION APPLICABLE TO IT. GENERALLY, VALUE OF PROPERTY IS VALUED BY THE COMPE TENT VALUER AND IN OUR CASE VALUATION OF THE PROPERTY IS VALUED BY THE APP ROVED VALUER WHO IS APPROVED BY THE INCOME TAX DEPARTMENT. FURTHER, EARLIER THE CASE WAS UNDER SCRUTINY AND TH E SAME HAS BEEN ASSESSED BY THE A.O. U/S 143(3} WHEREIN YOUR ASSESSEE HAS SU BMITTED VALUATION REPORT AND ON THE BASIS OF VALUATION REPORT, HE HAS ACCEPT ED THE VALUE OF THE PROPERTY AS REPORTED IN THE VALUATION REPORT, I.E. A.O. HAS APPLIED HIS MIND WHILE PROCESSING THE ASSESSMENT ORDER AND HAS ACCEP TED THE VALUE AS IT IS. ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 4 - IT WILL NOT BE OUT OF PLACE IF I MENTION THAT THERE CANNOT BE NIL VALUE FOR ANY STRUCTURE, SINCE EVEN WOOD, BRICKS, STONES, ANY BUILDING MATERIAL WILL HAVE VALUE. IN MY CASE THE BUILDING MAY BE VERY OLD BUT IT HAS A VALUE AND THEREFORE, AFTER CONSIDERING ALL THESE ASPECTS, THE VALUER HAS VALUED THE PROPERTY. FURTHER, VALUATION OF PROPERTY IS HIGHLY TECHNICAL MATTER AND VALUE CAN BE DETERMINED BY THE TECHNICAL PERSON, WHO HAS A KNOWL EDGE OF SUCH A VALUATION. THE SAME APPROACH HAS BEEN FOLLOWED BY YOUR ASSESSE E AND YOUR ASSESSEE HAS OBTAINED A VALUATION REPORT FROM AN APPROVED VALUER , WHO HAS VALUED THE PROPERTY AND THE SAME HAS BEEN ADOPTED BY YOUR ASSE SSEE WHILE FILING THE RETURN OF INCOME. THE VALUE OF PROPERTY IS BASED ON SEVERAL FACTORS A ND THIS BEING HIGHLY TECHNICAL, CAN BE DETERMINED BY A TECHNICAL PERSON ONLY WHEN THE VALUATION IS TO BE DETERMINED FOR A PREVIOUS DATE AS COMPARED TO PRESENT VALUATION, WHICH IS BASED ON MARKET FORCES AND CAN BE ADOPTED BY TAK ING AJUNTRY VALUE AS DECLARED BY THE STATE GOVERNMENT. IN VIEW OF ABOVE. I REQUEST YOU TO KINDLY DROP THE PENALTY PROCEEDINGS AND OBLIGE. HOWEVER, SUCH PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY THE LEARNED CIT AND HE THUS SET ASIDE THE ORDER PASSED BY THE L EARNED AO WITH A FURTHER DIRECTION UPON HIM TO PASS A FRESH ORDER AFTER BRIN GING ON RECORD ALL RELEVANT EVIDENCES MAKING ENQUIRY AND ALSO AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. WHILE DOING SO, THE LEARNED CIT OBSERV ED THAT THE REGISTERED VALUER REPORT SUFFERS FROM SELF CONTRADICTION. THE BUNGALOW IS IN EXTREMELY DILAPIDATED CONDITION AND WAS NOT IN A POSITION OF BEING REPAIRED AND APPARENTLY HAD NO MARKET VALUE AND YET THE SAME HAS BEEN ESTIMATED BY THE REGISTERED VALUER AT A VERY HIGH VALUE, THIS PARTIC ULAR ASPECT OF THE MATTER HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER AS ALSO OPINED BY THE LEARNED CIT. THE COMPARABLE INSTANCES GIVEN BY THE REGISTER ED VALUER HAS NOT BEEN VERIFIED BY THE ASSESSING OFFICER. IN ORDER TO ATTR ACT THE POINT AS RAISED BY THE ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 5 - ASSESSEE THAT VALUATION IS A TECHNICAL MATTER AND C AN BE DETERMINED BY THE TECHNICAL PERSON, THE LEARNED CIT OBSERVED THAT THE ASSESSING OFFICER IS NOT PRECLUDED FROM APPLYING HIS MIND TO THIS ISSUE. IT WAS THE CONTENTION OF THE LEARNED CIT THAT SINCE THE ASSESSING OFFICER DID NO T MAKE PROPER ENQUIRY AND FAILED TO APPLY HIS MIND, THE ORDER IS BOTH PREJUDI CIAL AS WELL AS ERRONEOUS. HENCE, THE INSTANT APPEAL BEFORE US. 3. AT THE TIME OF HEARING OF THE APPEAL, THE LEARNE D AR APPEARING FOR THE ASSESSEE SUBMITTED THAT INITIALLY THE ASSESSMENT WA S FINALIZED UPON SCRUTINY BY THE LEARNED AO WHEREIN, THE VALUATION REPORT WAS DU LY SUBMITTED BY THE ASSESSEE. FURTHER THAT THE VALUATION OF PROPERTY WA S DONE FOR THE PURPOSE OF VALUATION OF CAPITAL GAIN AND THUS THOUGH THE VALUA TION WAS DONE AS ON 01.04.1981 BUT THE VALUER REPORT WAS OF DATED 30.01 .2009, WHEN UPON INSPECTION OF THE PROPERTY DESCRIPTION WAS MADE BY THE VALUER WHICH DOES NOT RELATE TO THE DATE OF VALUATION I.E. 01.04.1981 BUT PRACTICALLY AS ON 30.01.2009. IT WAS ARGUED BY THE LEARNED AR THAT ON THE BASIS O F THE VALUATION REPORT UPON APPLICATION OF MIND THE LEARNED AO ACCEPTED THE VAL UE OF THE PROPERTY. SINCE WHILE PASSING ASSESSMENT ORDER THE ASSESSING OFFICER HAD APPLIED HIS MIND ON THE ISSUE UNDER CONSIDERATION AND ACCOR DINGLY PASS ORDERS, THE FINDING OF THE LEARNED CIT THAT THE COST OF PROPERT Y SHOULD BE TAKEN AS NIL FOR CALCULATION OF THE LONG TERM CAPITAL GAIN SEEMS TO BE CHANGED OF OPINION. HE ALSO PLACED RELIED ON THE JUDGMENT PASSED BY THE JU RISDICTIONAL HIGH COURT IN THE CASE OF PCIT-VS-CLP INDIA PVT. LTD. ON THE CONT RARY, THE LEARNED DR RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BEL OW. ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 6 - 4. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. THE VALUATION REPORT DATED 30.01.2009 WHICH IS ON RECORD BEFORE US HAS ALSO BEEN DULY TAKEN CARE OF WHERE THE DATE OF VALU ATION MADE AS MENTIONED WAS OF 30.01.2009. THE DESCRIPTION GIVEN IN THE SAI D VALUATION REPORT IN RESPECT OF THE PROPERTY IN QUESTION IS AS FOLLOWS: THE PROPERTY CONSISTING OF AN N.A. LAND BEARING PL OT NO. 38 OF VILLAGE DEVKA IN THE DIST. DAMAN, IS LOCATED ON THE MAIN ROAD FRO M NANI DAMAN TO DEVKA. IT ADMEASURES 6400.00 SQ.MT. LAND AREA. THE BUNGALO W EXISTING ON THE PLOT IS KNOWN AS 'HILL VIEW' BUNGALOW, IT IS AN OLD STRUCTU RE, TRADITIONAL ARCHITECTURAL STYLE, BUILT IN STONE, BRICKS AND WOO D. AS IT IS NOT IN USE FOR QUITE LONG AND NOT MAINTAINED SO FAR, IT IS IN A VERY BAD AND DILAPIDATED CONDITION. IT APPARENTLY SEEMS THAT IT CANNOT BE REPAIRED WITH MINIMUM EXPENSES. THE COST OF RECONDITIONING OF THE STRUCTURE WILL BE AS GOOD AS BUILDING A NEW STRUCTURE. THUS, EVEN THOUGH THE LOCATION OF THE PLOT IS ON TH E MAIN ROAD (PRIME AREA), THE CONSTRUCTION ON THE PLOT IS NOT POSSIBLE AS ON TODAY, AND THE UTILITY, USAGE OF THE PLOT IS NIL EXCEPT, KEEPING IT OPEN MOREOVER THE PLOT IS AT HIGHER LEVEL AND THE SOIL IS ROCKY. THE LEVEL OF THE GROUND NEAR THE EXISTING BUNGALOW IS APPROXIMATELY 10'-0' HIGHER THAN THAT OF THE EXISTI NG MAIN ROAD. THERE IS A NALA PASSING THROUGH THE APPROACH CULVER T WHICH IS PARTLY BROKEN. AT PRESENT THERE IS NO DIRECT APPROACH TO THE PLOT FROM THE MAIN ROAD AND IT IS OBSERVED THAT THERE IS VILLAGE ROAD ON THE REAR SID E (EAST SIDE) OF THE PLOT FROM WHICH THE VEHICLE CAN BE BROUGHT TO THE PLOT. THERE IS NO NEW CONSTRUCTION NEAR BY, NOT SEEN FOR MANY YEARS, IN THE LINE WITH THE EXISTING BUNGALOW. THUS IT APPEARS THAT THE PROPERTY WAS DESCRIBED IN ITS PRESENT CONDITION SINCE THE VERB IS, IS AVAILABLE IN THE 6 TH LINE OF THE FIRST PARAGRAPH OF DESCRIPTION AT PAGE 5 OF THE VALUATION REPORT. IT W AS FURTHER MENTIONED THAT THE PRESENT CONDITION OF THE STRUCTURE IS NOT GOOD, NOT IN USE, NOT REPAIRABLE. PRESENTLY NO WATER OR ELECTRIC POWER CONNECTION IS AVAILABLE AND NO DIRECT APPROACH TO THE PLOT IS FOUND. THE PLOT IS COVERED BY ILLEGAL TENTS. THE LEARNED CIT IN THE SECOND PARAGRAPH OF THIS NOTICE OBSERVED BUNGALOW WAS IN VERY BAD AND DILAPIDATED CONDITION. IT CANNOT BE REPAIRE D WITH MINIMUM EXPENSES. ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 7 - THE COST OF RECONDITIONING OF STRUCTURE WILL BE AS GOOD AS BUILDING A NEW A NEW STRUCTURE. BUT IT DOES NOT REFLECT THE ACTUAL POSI TION OF THE MATTER. THE DESCRIPTION OF THE PROPERTY GIVEN IN THE VALUATION REPORT AS ON THE DATE OF INSPECTION I.E. ON 30.01.2009 AND NOT ON 01.04.1981 BUT THE VALUATION WAS ASSESSED AS ON 01.04.1981. THIS PARTICULAR ASPECT O F THE MATTER HAS NOT AT ALL BEEN TAKEN CARE OF BY THE LEARNED CIT(A) WHICH HAD ALREADY BEEN TAKEN CARE OF BY THE LEARNED AO IN THE ORIGINAL ASSESSMENT PRO CEEDING UNDER SCRUTINY. THE CHANGE OF OPINION IS THUS APPARENT OF THE FACE OF RECORDS. FURTHER THAT, MERELY BECAUSE THE AO ADOPTED ONE OF THE TWO VIEWS POSSIBLE AND THAT AS HAS RESULTED IN LOSS OF REVENUE IT CANNOT BE TREATED AS ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN FACT, A PLAIN READI NG OF SECTION 263 OF THE ACT SUGGESTS THAT THE COMMISSIONER MAY CALL FOR AND EXA MINE THE RECORDS OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS FIRS TLY THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, THEN HE, MAY, UPON MAKING AN ENQUIRY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF HEARING CAN PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY INCLUDING AN ORDER OF ENHANCEMENT OR M ODIFICATION OF THE ORDER OR CANCELLATION OF THE ASSESSMENT ORDER AND DIRECT A F RESH ASSESSMENT BY THE ASSESSING OFFICER. THEREFORE, THE FIRST AND FOREMOS T CONDITION IS TO SATISFY THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONE OUS AND THE SAME IS PREJUDICIAL TO THE INTEREST OF REVENUE. IN THE INST ANT CASE, WE HAVE GONE THROUGH THE ORDER PASSED BY THE LEARNED CIT BUT WE HAVE FAILED TO UNDERSTAND AS TO WHY SUCH ORDER PASSED BY THE ASSESSING OFFICE R IS ERRONEOUS. IT IS THE LAW OF THE LAND THAT BEFORE THE COMMISSIO NER EXERCISE JURISDICTION OF SUO MOTO REVISION HE HAS TO BE SATI SFIED ABOUT THE FULFILLMENT OF TWIN CONDITIONS AS STATED ABOVE NAMELY; (I) THE ORD ER OF ASSESSING OFFICER ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 8 - SOUGHT TO BE REVISED IS ERRONEOUS, (II) IT IS PREJU DICIAL TO THE INTEREST OF REVENUE. IF ONE OF THEM IS ABSENT RECOURSE CANNOT B E HAD TO SECTION 263(1) OF THE ACT. IF THE ORDER IS ERRONEOUS BUT IS NOT PREJU DICIAL TO THE INTEREST OF REVENUE OR IF THE ORDER IS NOT ERRONEOUS BUT IS PRE JUDICIAL TO THE INTEREST OF REVENUE, THE COMMISSIONER OF INCOME TAX CANNOT EXER CISE REVISIONAL POWERS. IT HAS BEEN FURTHER HELD THAT WHEN THE ASSESSING OF FICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN L OSS OF REVENUE IT CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE O R WHERE TWO VIEWS ARE POSSIBLE AND THE AO HAS TAKEN ONE VIEW WITH WHICH T HE COMMISSIONER DOES NOT AGREE, THE ORDER CANNOT BE TREATED AS AN ERRONE OUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE UNLESS THE VIEW TAKEN BY TH E AO IS UNSUSTAINABLE IN LAW. IN THE PRESENT CASE, ACTION OF THE COMMISSIONE R WILL HAVE TO BE TESTED AT THE ANVIL OF THE AFORESAID PRINCIPLES. IN OUR CONSIDERED VIEW, THE ORDER OF THE AO COULD N OT BE TERMED AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REV ENUE WARRANTING EXERCISE OF REVISIONAL JURISDICTIONAL U/S 263 BECAUSE THE LEARN ED CIT FORMED A DIFFERENT OPINION. THE VALUER AS SIMPLY COMMENTED UPON CONDIT ION OF THE PROPERTY DURING THE COURSE OF HIS VERIFICATION ONLY. THIS DO ES NOT AUTOMATICALLY MEAN THAT PROPERTY WAS UNDER BAD AND DILAPIDATED CONDITI ON AS ON 01.04.1981. HOWEVER, WE FIND THAT WHEN TWO VIEWS ARE POSSIBLE A ND THAT HAS RESULTED IN LOSS OF THE REVENUE IT CANNOT BE TREATED AS ERRONEO US ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE UNLESS THE VIEW TAKEN BY TH E ASSESSING OFFICER IS UNSUSTAINABLE IN LAW. SO FAR AS THE ALLEGATION AGAI NST THE ASSESSING OFFICER FOR NOT MAKING PROPER ENQUIRY DURING ORIGINAL ASSESSMEN T PRECEDING, THE LEARNED AR RELIED UPON THE JUDGMENT PASSED IN THE MATTER OF PCIT-VS-CLP INDIA PVT. ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 9 - LTD. WHICH WE HAVE ALSO TAKEN CARE OF. THE RELEVANT PORTION WHEREOF IS AS FOLLOWS: 5. HAVING HEARD LEARNED COUNSEL FOR THE REVENUE W E MAY NOT ENTIRELY AGREE WITH THE OBSERVATION OF THE TRIBUNAL IN THE I MPUGNED JUDGEMENT WHEN IT SEEMS TO BE SUGGESTING THAT MERELY BECAUSE THE ASSE SSING OFFICER NOTED THE PROVISION OF SECTION 40(A)(IA) AND MADE CERTAIN LIM ITED DISALLOWANCE, THE ORDER OF ASSESSMENT CANNOT BE TAKEN INTO REVISION. WE DO NOT PROPOSE TO LAY DOWN SUCH BROAD LEGAL PROPOSITIONS. NEVERTHELESS IN THE FACTS OF THE PRESENT CASE WE ARE NOT INCLINED TO INTERFERE FOR ENTIRELY DIFFERENT REASONS. AS NOTED THE ASSESSEE'S CONTENTIONS BEFORE THE ASSESSING OFF ICER AND THE COMMISSIONER WAS THAT THE RECIPIENT OF THE PAYMENTS, THE GERMAN COMPANY HAD NO TAX LIABILITY AND THERE WAS THEREFORE NO QUESTION OF DE DUCTING TAX AT SOURCE AND FURTHER THAT WITH RESPECT TO THE SECOND HEAD OF PAY MENTS, THE ASSESSEE COMPANY HAD MERELY CORRECTED AN ERROR AND RECOVERED THE AMOUNTS FROM THE COMPANY. THESE ISSUES WERE BEFORE THE ASSESSING OFF ICER AND UNLESS SHOWN TO THE CONTRARY CAN BE PRESUMED TO HAVE BEEN CONSIDERE D BY HIM WHILE NOT MAKING THE ADDITIONS. IF THE COMMISSIONER WAS OF TH E OPINION THAT EITHER OF THE TWO CONTENTIONS WERE INVALID IN FACTS OR LAW, H E OUGHT TO HAVE COME TO SUCH A CONCLUSION WITHOUT HOLDING TO THE CONTRARY. HE MERELY BRUSHED ASIDE THE ASSESSEE'S CONTENTIONS OBSERVING THAT THE ASSES SING OFFICER HAD NOT MADE PROPER INQUIRIES. FOR SUCH REASONS, TAX APPEAL IS D ISMISSED' UPON GOING THROUGH THE RECORDS PARTICULARLY THE ORD ER PASSED BY THE LEARNED AO, WE FIND NOTHING CONTRARY TO COME TO A C ONCLUSION THAT THE LEARNED AO HAS NOT MADE ANY ENQUIRY IN THE ASSESSME NT PROCEEDING. TAKING INTO CONSIDERATION, THE ENTIRE ASPECT OF TH E MATTER WE ARE OF THE CONSIDERED VIEW THAT THE ORDER IMPUGNED BEFORE US I S NOTHING BUT A CHANGE OF OPINION AND THE VERY BASIS OF SUCH ORDER I.E. THE F INDING OF THE CIT DOES NOT DEPICT THE ORIGINAL FACTUAL MATRIX OF THE MATTER. A T THE COST OF REPETITION WE SAY THAT THE VALUATION OF THE PROPERTY WAS MADE UPON IN SPECTION ON 31.01.2009. THE DESCRIPTION OF THE PROPERTY WAS IN RESPECT OF T HAT RELEVANT POINT OF TIME AND NOT OF THE 01.04.1981 OF WHICH THE VALUATION WAS AS SESSED BY THE REGISTERED VALUER. SINCE, THE VERY BASIS OF THE FINDING OF THE CIT IS NOT PROPER, WE FIND NO MERIT IN THE ORDER IMPUGNED BEFORE US U/S 263 OF TH E ACT PASSED BY THE LEARNED ITA NOS.1069/AHD2016 & 1139/AHD2014 SHRI SHIRAZ BEHRAM CONTRACTOR ASST.YEAR 2009-10 - 10 - CIT. THUS, THE SAME IS HEREBY QUASHED. THE APPEAL P REFERRED BY THE ASSESSEE IS, THEREFORE, ALLOWED. ITA NO.1069/AHD/2016 FOR A.Y. 2009-10: 5. SINCE THE VERY BASIS OF THIS APPEAL BEING ORDER DATED 24.02.2014 U/S 263 OF THE ACT, 1961 HAS BEEN QUASHED BY US, THIS APPEA L BECOMES INFRUCTUOUS AND HENCE DISMISSED AS INFRUCTUOUS. 6. IN THE COMBINED RESULT, THE APPEALS FILED BY THE ASSESSEE BEARING ITA NO.1139/AHD/2014 IS ALLOWED AND ITA NO.1069/AHD/201 6 IS DISMISSED AS INFRUCTUOUS. THIS ORDER PRONOUNCED IN OPEN COURT ON 03/05/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 03/05/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-4, VADODARA & I, BARODA. 5. , ! ', #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER , //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD