Gunveer Singh Chhabra , Indore V. The Pr CIT -1, Indore

ITA 117/Ind/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8813 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 10-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Competent authority; TDS; Capital Gains
• Section: 263; 11; 143(3); 2(14); 48; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (Convened through Virtual Court) BEFORE Ms. MADHUMITA ROY, JUDICIAL MEMEBR & SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No. 117/Ind/2021 (िनधाᭅरण वषᭅ / Assessment Year : 2015-16) Gunveer Singh Chhabra 70, Palsikar Colony, Indore – 452004 (M.P.) बनाम/ Vs. The Pr-Commissioner of Income Tax-I Aaykar Bhawan, Indore, Madhya Pradesh - 452001 ᭭थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAVPC2237N (अपीलाथᱮ /Appellant) .. (ᮧ᭜यथᱮ / Respondent) अपीलाथᱮ ओर से/Appellant by : Shri Shubhash Jain, A.R. ᮧ᭜यथᱮ कᳱ ओर से / Respondent by : Shri P. K. Mitra, CIT.D.R. सुनवाई कᳱ तारीख / Date of Hearing 28/07/2022 घोषणा कᳱ तारीख /Date of Pronouncement 09/09/2022 ORDER PER Ms. MADHUMITA ROY, JM: The instant appeal filed by the assessee is directed against the order dated 25.03.2021 passed by the Learned Principal Commissioner of Income Tax, Indore-1 (in short ‘PCIT’) order under Section 263 of the Income Tax ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 2 Act, 1961 (in short ‘the Act’) arising out of order dated 15.12.2017 passed by the Assessing Officer under S.143(3) of the Act for A.Y. 2015-16. 2. There is a delay of 48 days in preferring instant appeal before us. The date of receipt of order passed by Learned PCIT is stated to be received on 26.03.2021 and due to Pandemic - Covid 19, the assessee was unable to file the appeal in time as the submission made by the Learned AR which has not been controverted by the Ld. DR with all his fairness. Keeping in view the situation arising out of said pandemic and the judgment passed by the Hon’ble Apex Court in this regard, we condone the delay. 3. The original assessment order was passed by the Learned AO on 15.12.2017 under Section 143(3) of the Act, upon hearing the learned counsel appearing for the assessee and considering the written submissions along with copy of the computation of income, bank statement and other details as sought for. These documents were duly examined by the Ld. AO as stated in the order passed by the Learned DCIT, Circle-2(1), Indore. The Learned AO finally upon considering the documents duly submitted by the assessee in support of claim made in the return of income duly perused by him and after due verification of the documents placed on record and after having discussion with the Learned AR, accepted the return of income of Rs.29,49,980/- filed by the assessee for A.Y. 2015-16. Subsequently, the Learned PCIT observed the said order is erroneous in so far as it is prejudicial to the interest of the Revenue on account of passing of the order without making required inquiry/investigation on the following two counts; (i) the issue regarding capital gains in respect of sale of agricultural land which has been claimed to be the outside of the definition of capital asset under Section 2(14) of the Act on the basis of the letter issued by the SDM ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 3 dated 23.10.2017 that the land in question is situated 6.4 kms away from the outer limit of Indore Municipal Corporation and not 8km. as stated by the appellant. (ii) Further that though the assessee has shown other fixed income received from Gujarati Samaj, Indore amounting to Rs.20Lakhs, no loan and advance were shown in the name of the said party from whom the said amount of interest has been claimed to have been received. Neither any TDS has been made by the said party on payment of the said interest. The Ld.PCIT was of the view that there was an under assessment of income of Rs.1,67,00,000/- as worked out @12% rate of interest. The issues were directed to be re-examined by the Ld.AO. 4. We have heard the rival submissions made by the respective parties and we have perused the relevant materials available on record. 5. The brief facts leading to the first issue is this that the assessee has sold an immovable property lying and situated at Gram Shriram Talawali, Patwari Halka No. 7 (New 19), Tehsil and Distt. Indore on 09.07.2014 jointly with a co-owner during the period under consideration for an amount of Rs.8,07,35,000/- and claimed exemption of half share of Rs.3,09,15,412/- of long term capital gain claiming that the said land was an agricultural one and situated outside the definition of capital asset under Section 2(14) of the Act, which was accepted by the learned AO during the course of assessment proceedings. 6. Upon careful consideration of the records available before us, various certificates in regard to the distance from the Municipal limit of Indore duly issued by the various authorities were duly submitted by the assessee before Assessing Officer. One of such certificate is annexed at page No.16 of the paper book filed before us issued on 14.12.2017 by the ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 4 Executive Engineer which states the fact that the distance from the Indore Nagar Nigam to the land in question is 9.5 km. Page 17 of the paper book contains the certificate issued on 08.12.2017 by the Chief Executive Engineer certifying the distance from the Nagar Nigam i.e. Indore Municipal Corporation to land in question is 9 km.. Page 28 of the paper book contains the certificate issued by the Tehsildar dated 02.03.2020 certifying the land in question admeasuring about 1.964 hectare lying and situated at Shriram Talawali. The Gram Sirpur Baank is the outer limit of Indore Municipal Corporation from where the distance of Gram Shriram Talawali where is property in question is situated is 8.4 km. The page No.8 of the sale deed indicates the land situated at Gram Shriram Talawali, Patwari Halka No. 7 (New 19), Tehsil and Distt. Indore (M.P.), the land is in the nature of agricultural and the land in question is situated at a distance approximately 9km from the Municipal limit of Indore Municipal Corporation. In fact in order to substantiate the contents of the sale deed, the assessee submitted the certificate dated 14.12.2017 issued by the Executive Engineer, Indore, Division-1 and the certificate issued by the Chief Executive Engineer, Nagar Nigam dated 08.12.2017 and the certificate issued by the Tehsildar dated 02.03.2020 certifying that the distance from the outer limit of the Indore Municipal Corporation to the land in question is not less than 8.4km. During the assessment proceedings, a copy of letter issued by the SDM has been handed over to the assessee whereby and whereunder the distance of the agricultural land stated to be 6.4 km. from the municipal limit. It has been duly disputed by the assessee by filing the affidavit dated 17.11.2017 before the Ld.AO. In fact, in order to resolve the dispute relating to the distance of the land in question from the outer limit of the Indore Municipal Corporation, the DCIT has written a letter dated 29.11.2017 to the Ld. SDM. The assessee also requested the Ld.AO for cross examining the said corresponding ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 5 information with the SDM, Indore but the same remained unanswered. The assessee was of the said opinion as no counter comment was called for from the assessee by the Ld.AO. According to the assessee, the SDM is not a competent authority for the distance certificate rather than PWD department is authorized for the same. Apart from that the Tehsildar can be the competent authority and not the SDM as already pointed out by the assessee before the Ld.AO in view of the judgment passed in the matter of CIT vs. Lal Singh reported in 325 ITR 588 by Hon’ble Punjab & Haryana High Court, wherein following observations were made: “We have heard the rival submissions. We have also perused the record. We are of the opinion that the AO erred in computing the long-term capital gain on the basis of the report of the Inspector and he did not believe the report of the Tehsildar. We agree with the opinion of the learned CIT(A) that he should have requested the higher authorities of the State Government if he did not believe his report to be correct or he could have summoned the Tehsildar under s.131 of the IT Act in order to verify the veracity of the report. He was not justified in brushing aside the report of the Revenue official who is competent to measure the distance of the land. The CIT(A) observed that the Tehsildar is more competent than the Inspector of the Department to measure the distance of the land. Thus, we do not find any infirmity in the order of the CIT(A) and the same is sustained for the reasons given therein.” 7. We have further noted that in the order sheet entry made by the Ld. AO various correspondences made by the assessee were recorded including that of the noting dated 14.12.2017 which demonstrates that the map, PWD certificate, Janpad, Panchayat Google Maps, sale deed indicated the distance of the land in question from the Municipal limit of Indore is around 9 kms.. The entire facts of issuing letter by SDM ascertaining the distance of the land in question is 6.4 kms. from the Municipal limit and also the rebuttal of the assessee against the said finding of the SDM was duly discussed by the Ld. AO with the Ld. JCIT as also mentioned in the said noting. Apart from that a further case has been made out by the assessee before us to this effect that the land in question is of the Gram Panchayat ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 6 area as it is already evident from the page 9 of the sale deed executed by the assessee being part of paper book filed before us. In that view of the matter the sale does not require any prior permission, prior approval or no objection certificate. If that be so, then the land in question was not situated within the limit of any Municipality or Cantonment Board rather this is in a Panchayat area. In terms of Section 2(14) of the Act, the exclusion of agricultural land as capital asset would be applicable to land within the limits of Municipality and not a Panchayat. The assessee, since purchased agricultural land in the Panchayat, it is not a capital asset as per Section 2(14)(3) of the Act and accordingly, the amount of capital gain claimed by the assessee has been rightly allowed by the AO in the original proceedings as the submissions made by the Learned counsel for the assessee. In support of his submission, he further relied upon the judgment passed by the Hon’ble Madras High Court in the case of CIT vs. P. J. Thomas reported in (1995) 211 ITR 897(Mad.). The ratio of the said judgment was also relied upon by the Co-ordinate Bench in the case of Shri Krishna Mohan Chourasia vs. ITO in ITA No.853/Ind/2017 for A.Y. 2014- 15. 8. We have carefully considered these two judgments as relied upon by the Ld.AO. We find that in an identical situation while granting relief to the assessee by excluding the land in question from this status of capital asset as provided under Section 2(14)(iii) of the Act, the Hon’ble Madras High Court observed as follows: " _____________Even as regards the second question, it is seen that under section 2(14) of the Income-tax Act, 1961, the exclusion of agricultural land as capital asset, would be applicable to land within the limits of a municipality and not a panchayat. The land sold by the assessee was situate in Koshancherry town and that was only a panchayat. Though learned counsel for the Revenue strenuously contended that a panchayat would also be comprehended within section 2(14) of the Income-tax Act, 1961, we are unable to accept the ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 7 contention. Section 2(14)(iii) refers to the exclusion as capital asset of agricultural lands situate in an area which is comprised within the jurisdiction of a municipality (whether known as municipality or municipal corporation, notified area committee, town area committee, town committee or by any other name) or a cantonment, which has a population of not less than 10,000 according to the last preceding census. In order that the benefit of exclusion of agricultural land as capital asset may not be available, the land should be situated within the jurisdiction of a municipality or a cantonment board as stated earlier and is also related to the population. Though the expression, "municipality, municipal corporation, notified area committed town area committee, town committee", etc., have been used they refer only to certain specific entities either known by that name or by any other name and that cannot be taken to apply to a panchayat which is and has also always been understood as distinct and different from municipality, etc. In the absence of clear or specific words in the section to take in a panchayat, we are unable to countenance the argument of learned counsel for the Revenue. We are satisfied that the Tribunal was quite justified in deleting the tax arising on capital gains on account of the sale of the agricultural lands by the assessee. The tax case petition is dismissed. There will be no order as to costs." 9. We further find that the said ratio as laid down by Hon’ble Madras High Court was applied by the Co-ordinate Bench with the following observations: “In light of the facts re-iterated above and after going through the findings of the Hon'ble Madras High Court (supra), we find that there is a clear distinction between a municipality and a gram panchayat as also enunciated in the judgment (supra), therefore, we are of the view that the land in question was not situated Krishna Mohan Chourasia within the limit of any municipality or cantonment board. Thus, in view of these facts and circumstances of the case, we find that the agricultural land initially purchased by the assessee was not a capital asset as per section 2(14)(iii) of the Act. Accordingly, the amount of capital gain accruing to the assessee till the diversion of agricultural land on 25.11.2010 shall not be eligible to tax.” 10. As this is an admitted position that the land is lying and situated in the Gram Panchayat area, the ratio laid down by the Hon’ble Madras High Court is applicable to the instant case and in that view of the matter since the assessee has not sold any capital asset as per Section 2(14)(iii) of the Act, the capital gain if, at all, is not eligible to tax. ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 8 11. On the other hand, apart from relying upon the certificate issued by the SDM , the Revenue has come up with the further case that the aerial distance of the land in question from the Municipal limit is to be considered on from A.Y. 2014-15 in terms of the amendment made to this effect. In support of this contention, the Ld. DR submitted a Goggle Map downloaded from the Website. Though, before the authorities below itself the assessee duly submitted a Google map justifying his claim of the land in question being not less than 8.4 km away from the Municipal limit of Indore. 12. Under these circumstances, the assessee has further challenged the maintainability of proceedings under Section 263 of the Act on the count that the order of the AO can be interfered with by the revisional power of Commissioner of Income Tax only unless the said order is found to be erroneous and prejudicial to the interest of Revenue. The phrase “prejudicial to the interest of the Revenue”has to be read in conjunction with an erroneous order passed by the Ld. AO. Moreso, every order of Revenue cannot be treated as prejudicial to the interest of the Revenue as a consequence of an order of the Ld.AO. Apart from that where two views are possible and the ITO has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous or prejudicial to the interest of the Revenue unless the view taken by the ITO is unsustainable in law. On this ground, he has relied upon the judgment passed by the Hon’ble High Court of Gujarat in the case of CIT vs. Nirma Chemicals Works Pvt. Ltd. Reported in (2009) 182 taxman 183 (Gujarat). It was further argued by him that upon considering the entire documents, and upon examining different memos issued by different authorities clarifying the distance of the land and upon exhaustive enquiry, the Ld. AO has finalized the assessment accepting the return filed by the assessee which is ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 9 evident from the assessment order passed by itself and also from the noting made the Ld. AO in the regular order sheet entries the same cannot be interfered with by the Ld. PCIT. On the contrary, the Revenue pointed out that the same is not reflecting from the order passed by the Ld.AO. In reply, it was submitted by the assessee’s counsel that the assessment order cannot give detailed reasons in respect of each and every item of deduction, which would cause impossible burden on the AO and secondly, the said order is appealable one. On this count, he has further relied upon the judgment passed by the Hon’ble High Court of Gujarat in the case of CIT vs. Kamal Galani reported in (2018) 95 taxmann.com 261 (Gujarat) and CIT vs. Nirma Chemicals Works (P.) Ltd. [2009] 309 ITR 67 (Guj.), wherein Hon’ble High Court held as under: “22. The contention on behalf of the revenue that the assessment border does not reflect any application of mind as to the eligibility or otherwise under section 80-1 of the Act requires to be noted to be rejected. An assessment order cannot incorporate reasons for making/granting a claim of deduction. If it does so, an assessment order would cease to be an order and become an epic some. The reasons are not far to seek. Firstly, it would cast an almost impossible burden on the Assessing Officer, considering the workload that he carries and the period of limitation within which an order is required to be made; and, secondly, the order is an appealable order. An appeal lies, would be filed, only against disallowances which an assessee feels aggrieved with. 23. As far as absence of discussion in the assessment order is concerned, this is what has been laid down by this court in the case of Rayon Silk Mills v. CIT [1996] 221 ITR 155 :— "In the first instance it was contended by learned counsel for the assessee that the very premise on which order under section 263 was made against the assessee, namely, that the Income-tax Officer has not at all examined the goodwill account is not existent. According to him, it is apparent from the record that the goodwill account was thoroughly examined by the Income- tax Officer before making the assessment and after examining when he accepted the contention of the assessee its discussion did not find place in the assessment order, as no additions were going to be made or no modifications in the return filed by the assessee were required to be made in that regard. This contention of the assessee appears to be well-founded. It is true that the assessment order does not speak about the examination of goodwill account as such. However, as we have noticed above, the assessee in his ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 10 reply to the show-cause notice under section 263 had specifically mentioned that the entire matter was scrutinised and accepted while passing the assessment order. Our attention was also drawn to annexure 'D’. A submission made by the assessee to the Income-tax Officer, Surat, dated 18-10-1976, regarding the assessment year 1974-75 giving detailed chronological data of the constitution of the firm on November 11, 1968, induction of four more partners on 7-11-1972, the creation of goodwill in the books of account of the firm by debiting the goodwill account and crediting the old partners' capital accounts in their profit sharing ratio on that date, formation of a private limited company in the name of Rayon Silk Mills (P.) Ltd., and its induction into the firm as partner by the deed of partnership dated 27-10-1973, and the dissolution of the partnership firm on 23-2-1974, leaving the private limited company as a sole proprietor thereof and the valuation of the business at the book value as on that date. After giving the chronological sequence of events, the assessee also contended in his submission before the Income-tax Officer that there was no actual transfer of any asset inasmuch as when a partner is admitted into the firm no transfer takes place. It was also contended that no cash transfer took place from person to person and the transfer and the dissolution of the firm also did not result in accrual of capital gains. In the face of this material on record, it is difficult to explain that the assessment order was made without making any enquiry into the goodwill account of Rs. 10,75,000. . . ." (p. 158) 13. We have further considered the judgment passed in the matter of CIT vs. Kamal Galani (supra) when we find that the observation made by the Hon’ble Delhi High Court in the case of CIT vs. Sunbeam Auto Ltd. (supra) has been relied upon which is reproduced below: “12. The scope of the Commissioner's power of revision under section 263 has been a matter of judicial consideration on various ocassions. In case of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167/[2010] 189 Taxman 436 Division Bench of Delhi High Court observed as under: '12. ... ... ... There are judgements galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry". If there was any inquiry, even inadequate, that would not be itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of inquiry", that such a course of action would be open. In Gabriel India Ltd's case (supra), law on this aspect was discussed in the following manner:... .... ... ]” ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 11 14. So far as the jurisdiction of the Ld.PCIT under Section 263 of the Act is concerned, we have carefully considered the judgment relied upon by the assessee in the case of CIT vs. Nirma Chemicals Works (P.) Ltd. (supra). We find while holding the order passed by the Tribunal in upholding the exercise of powers under section 263 of the Act by the Ld. CIT(A) to be valid is an error, in the facts and circumstances of the case, the Hon’ble Court has been pleased to observe as follows: 24. There is another aspect of the matter. The assessee had challenged jurisdiction of the Commissioner of Income-tax to exercise powers under section 263 of the Act. For an order of the Assessing Officer to be interfered with in exercise of revisional powers the Commissioner of Income-tax has to find in the first instance that the order is erroneous and, secondly, the order is prejudicial to the interests of the revenue. The conditions are twin condition's as held by the Apex Court and both of them have to be fulfilled before the Commissioner of Income-tax can exercise jurisdiction under section 263 of the Act. In the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83 the Apex Court has held (headnote) : "The phrase 'prejudicial to the interests of the revenue1 has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue, unless the view taken by the Income-tax Officer is unsustainable in law." 25. Applying the aforesaid tests to the facts of the case it is not possible to uphold the order of the Tribunal as regards jurisdiction after considering the law enunciated by the Apex Court. The Assessing Officer after making due inquiries, as noted hereinbefore, adopted one view and granted partial relief under section 80-1 of the Act. The Commissioner of Income-tax takes a different view of the matter. However, that would not be sufficient to permit the Commissioner of Income-tax to exercise powers under section 263 of the Act because when two views are possible and the Commissioner of Income-tax does not agree with the view taken by the Assessing Officer, the assessment order cannot be treated as erroneous and prejudicial to the interests of the revenue unless the view taken by the Assessing Officer is unsustainable in law. That is not the position in the present case. In fact even the partial denial of relief under section 80-1 of the Act has been found to be incorrect by the appellate authority. Therefore, existence of two views stands established. In the aforesaid circumstances, the Commissioner of Income-tax could not have exercised jurisdiction under section 263 of the Act as per settled legal position. ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 12 26. The view expressed by this court in the case of Shashi Theatre (P.) Ltd. (supra), therefore, is in consonance with not only the requirement of law but concludes the issue insofar as the present case is concerned. Just as it is not possible to decide grant of investment allowance in relation to one or the other item without considering the eligibility thereof, similarly deduction under section 80-1 of the Act cannot be considered without deciding whether a particular portion of profits and gains has been derived from an industrial undertaking which fulfils the requisite conditions stipulated by the section. 27. In the aforesaid set of facts and circumstances of the case and the view that the court has adopted, it is not necessary to enter into any discussion as regards merits of the controversy which has been brought before this court by the other questions at the instance of the assessee and the question at the instance of the revenue. The reference is answered accordingly by holding that the Tribunal committed an error in upholding the exercise of powers under section 263 of the Act by the Commissioner of Income-tax to be valid in the facts and circumstances of the case, when not only was there a prohibition as stipulated by Explanation (c) of section 263 of the Act but even the twin requirements, viz., pre-conditions for exercise of jurisdiction under section 263 of the Act were not fulfilled. 28. The reference stands disposed of accordingly. There shall be no order as to costs.” 15. Thus, considering the entire object of the matter, we find that the original assessment order has been passed under Section 143(3) of the Act by the Ld.AO after due verification of the issue raised in the order impugned passed under Section 263 of the Act and that too upon causing exhaustive enquiry and finalising the same after taking a possible view, the invocation of provision of Section 263 of the Act on the basis of change of opinion is, thus, not found to be sustainable. We have also found substance in the arguments advanced by the Ld. AR that the original order needs not to give detailed reason. Further that when one possible view has been taken by the Ld AO the said cannot be treated as erroneous and prejudicial to the interest of the Revenue. In this regard, we are also inspired by the ratios laid down by the Hon’ble Gujarat High Court in the judgment passed in the matter of CIT vs. Nirma Chemicals Works (P.) Ltd. (supra) and CIT vs. Kamal Galani (supra). Under this circumstance, we find the order ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 13 passed by the Ld PCIT under Section 263 of the Act is not sustainable and thus quashed. 16. So far as the second issue of interest amount of Rs.20Lakhs as received by the assessee from Gujarati Samaj, Indore is concerned, we have heard the rival submissions made by the respective parties and perused the relevant materials available of record. 17. It appears that since in the computation of income the assessee has shown interest income received from Gujarati Samaj amounting to Rs.20Lakhs whereas the financial statement as on 31.03.2015 no loans or advances has been shown in the name of the said party. The TDS has not been made by the said part as on payment of such interest. The Ld. PCIT was of the view that the assessee has unaccounted money and out of books the same has been given to Gujarati Samaj. On the contrary, it appears that the assesse has entered into agreement with Gujarati Samaj, Indore on 20.12.2013 to sell of the agricultural land with the condition that the payment to be made on or before 28.01.2014 towards the sale consideration of the assessee. Since, the buyer could not make payment in due time as agreed upon the interest on delayed payment was made to the assessee. Therefore, such interest has been paid not on any amount of money borrowed from the assessee by the said party rather for non-fulfilment of the commitment of making timely payment in respect of sale of agricultural land. In view of the matter, there was no disclosure of any advance in the financial statement when the source of interest amount was asked by the Ld.AO. The above narrated facts were duly placed by the assessee to him and finally the Ld. AO accepted the said interest income made by the AO.. No contrary document, however, is forthcoming from the Revenue which could justify that the order passed by the Ld. AO in this count is erroneous ITA No. 117/Ind/2021 (Gunveer Singh Chhabra vs. PCIT) A.Y. 2015-16 14 so far as it is prejudicial to the interest of the Revenue. Hence, the condition prescribed under Section 263 of the Act has not been fulfilled in issuing the order under Section 263 of the Act by Ld. PCIT as impugned before us. Hence, the same is found to be not sustainable and thus quashed. 18. In the result, assessee’s appeal is allowed. Sd/- Sd/- (BHAGIRATH MAL BIYANI) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore: Dated 09/09/2022 True Copy S.K.SINHA आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of Order Forwarded to:- 1. राज᭭व / Revenue 2. आवेदक / Assessee 3. संबंिधत आयकर आयुᲦ / Concerned CIT 4. आयकर आयुᲦ- अपील / CIT (A) 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाडᭅ फाइल / Guard file. By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore This Order pronounced in Open Court on 09/09/2022