Ms Kavitaben Vinodbhai Adani, Ahmedabad V. The Income Tax Officer, Ward-5(2)(5), Ahmedabad

ITA 1284/AHD/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6274 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: S N SOPARKAR
• Keywords: Capital asset; Gift; Revision of order; Question of law
• Section: 143(3); 54F; 142(1); 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1284/AHD/2017 (ASSESSMENT YEAR: 2012-13) MS. KAVITABEN VINODBHAI ADANI SHIKHAR 8 TH FLOOR, NR. MITHAKHALI CIRCLE, NAVRANGPURA, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 5(2)(5), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ADRPA6552F APPELLANT BY : SHRI S.N. SOPARKAR, P.M. MEHTA & URVASHI SHODHAN, A.R. RESPONDENT BY : SHRI SURENDRA KUMAR, CIT/D.R . ( )/ ORDER DATE OF HEARING : 16 -01-201 8 DATE OF PRONOUNCEMENT : -01-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE A SSUMPTION OF JURISDICTION BY THE PRINCIPAL CIT-5, AHMEDABAD U/S. 263 OF THE ACT. THE ASSESSEE STRONGLY CONTENDS THAT THE LD. PRINCIPAL CIT HAS WRONGLY ASS UMED THE JURISDICTION U/S. ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 2 263 OF THE ACT WHEN THE ASSESSMENT ORDER FRAMED U/S . 143(3) OF THE ACT VIDE ORDER DATED 26.02.2015 IS NEITHER ERRONEOUS NOR PRE JUDICIAL TO THE INTEREST OF THE REVENUE. 2. REPRESENTATIVES OF BOTH SIDES WERE HEARD AT LENGTH. HAVING HEARD THE RIVAL CONTENTIONS, WE HAVE CAREFULLY PERUSED THE ORDERS O F THE AUTHORITIES BELOW. WITH THE ASSISTANCE OF THE LD. COUNSEL, WE HAVE GON E THROUGH THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD IN THE LIGH T OF RULE 18(6) OF THE ITAT RULES. 3. LET US FIRST UNDERSTAND THE POSITION OF SETTLED LAW IN RESPECT OF THE POWERS CONFERRED UPON THE LD. COMMISSIONER U/S. 263 OF THE ACT. IT IS A SETTLED POSITION OF LAW THAT POWERS U/S 263 OF THE ACT CAN BE EXERCISED BY THE COMMISSIONER ON SATISFACTION OF TWIN CONDITIONS, I. E., THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. BY 'ERRONEOUS' IS MEANT CONTRARY TO LAW. THUS, THIS PO WER CANNOT BE EXERCISED UNLESS THE COMMISSIONER IS ABLE TO ESTABLISH THAT T HE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. THUS, WHERE THERE ARE TWO POSSIBLE VIEWS AND THE ASSESSING OFFI CER HAS TAKEN ONE OF THE POSSIBLE VIEWS, NO ACTION TO EXERCISE POWERS OF REV ISION CAN ARISE, NOR CAN REVISIONAL POWER BE EXERCISED FOR DIRECTING A FULLE R ENQUIRY TO FIND OUT IF THE VIEW TAKEN IS ERRONEOUS, WHEN A VIEW HAS ALREADY BE EN TAKEN AFTER ENQUIRY. THIS POWER OF REVISION CAN BE EXERCISED ONLY WHERE NO EN QUIRY, AS REQUIRED UNDER THE LAW, IS DONE. IT IS NOT OPEN TO ENQUIRE IN CASE OF INADEQUATE INQUIRY. OUR VIEW IS FORTIFIED BY THE DECISION OF HON'BLE HIGH C OURT OF BOMBAY IN THE CASE OF CIT VS. NIRAV MODI, [2016] 71 TAXMANN.COM 272 (B OMBAY). ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 3 4. THE HONBLE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD., 243 ITR 83, HAS LAID DOWN THE FOLLOWING RATIO:- 'A BARE READING OF SECTION 263 OF THE INCOME-TAX AC T, 1961, MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION B Y THE COMMISSIONER SUO MOTU UNDER IT, IS THAT THE ORDER OF THE INCOME-TAX OFFIC ER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE CO MMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE AS SESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENTIF THE ORDER OF THE INCOME-TA X OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRO NEOUS BUT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SECTION 263(1) O F THE ACT. THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER, IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR A N INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERR ONEOUS '. 5. IN THE LIGHT OF THE SETTLED PROPOSITION OF LAW MENT IONED HEREINABOVE, LET US NOW SEE WHETHER THERE IS ANY WRONG ASSUMPTION OF LAW OR FACTS MADE BY THE A.O. WHILE FRAMING THE ASSESSMENT ORDER DATED 26.02.2015 U/S. 143(3) OF THE ACT. 6. AN AGREEMENT TO SELL DATED 27.03.2007 FOR LANDS BEA RING SURVEY NUMBER 220 & 221 WAS EXECUTED BETWEEN ASSESSEE AND R.Y. INFRASTR UCTURE PVT. LTD. IN THE PRESENCE OF PUBLIC NOTARY. THE CONSIDERATION IN TER MS OF SAID AGREEMENT FOR THE TRANSFER WAS FIXED AT RS. 28.41 LACS. IT WAS AGREED THAT SALE DEED MAY BE EXECUTED IN FAVOUR OF BUYER OR HIS ASSIGNEES. CONSI DERATION OF RS. 28.35 LACS WAS RECEIVED BEFORE THE EXECUTION OF AGREEMENT TO S ELL. 7. THEREAFTER, VACANT AND PEACEFUL POSSESSION OF THE I MPUGNED LANDS WAS PASSED ON TO R.Y. INFRASTRUCTURE PVT. LTD. VIDE POSSESSION AGREEMENT DATED 04.05.2007 ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 4 SIGNED AND EXECUTED IN PRESENCE OF PUBLIC NOTARY. O N THIS DATE, THE ASSESSEE ALSO RECEIVED THE BALANCE CONSIDERATION OF RS. 6,00 0/-. THUS, THE ENTIRE CONSIDERATION OF RS. 28.41 LACS WAS RECEIVED BY THE ASSESSEE IN F.Y. 2007-08. 8. ON THESE FACTS, IN OUR UNDERSTANDING OF THE LAW, SE CTION 2(47)(V) BODILY TRANSPOSES INTO ITSELF SECTION 53A OF THE TRANSFER OF PROPERTY ACT R.W. CORRESPONDING SECTION 17(1) OF THE INDIAN REGISTRAT ION ACT. WHICH MEANS THAT THE ASSESSEE HAS TRANSFERRED THE IMPUGNED LANDS TO THE VENDEE CONCERNED IN F.Y. 2007-08 RELEVANT TO A.Y. 2008-09. IN A.Y. 200 8-09, THE ASSESSEE OFFERED THE CAPITAL GAINS ARISING OUT OF THE ABOVE TRANSACT ION AND PAID THE TAXES AS PER THE PROVISIONS OF THE LAW. IN OUR CONSIDERED OPINIO N, THERE IS NO WRONG ASSUMPTION OF LAW SO FAR AS THE TAX LIABILITY OF CA PITAL GAINS IS CONCERNED. THE IMPUGNED LANDS WERE TRANSFERRED FOR THE PURPOSES OF CAPITAL GAINS TAX LIABILITY IN F.Y. 2007-08 RELEVANT TO A.Y. 2008-09 ON GIVING POS SESSIONS OF THE IMPUGNED LANDS TO R.Y. INFRASTRUCTURE PVT. LTD. 9. NOW LET US SEE WHETHER THERE WAS ANY WRONG ASSUMPTI ON OF FACTS. THE AGREEMENT TO SELL DATED 27.03.2007 ALONGWITH THE PO SSESSION AGREEMENT DATED 04.05.2007 ARE EXHIBITED AT PAGES 178 TO 263 OF THE PAPER BOOK. BOTH THESE AGREEMENTS WERE EXECUTED IN THE PRESENCE OF PUBLIC NOTARY. THE CONSIDERATION OF RS. 28.35 LACS WAS RECEIVED BY THE ASSESSEE ON T HE DATE OF ENTERING THE SALE AGREEMENT AND THE BALANCE OF RS. 6,000/- WAS RECEIV ED ON GIVING THE QUITE POSSESSION. THE POSSESSION WAS GIVEN IN F.Y. 2007-0 8. ALL THESE FACTS ARE THERE ON THE RECORDS. 10. EXECUTION OF AGREEMENT TO SELL FOLLOWED BY POSSESSI ON AGREEMENT RESULTED INTO TRANSFER OF IMPUGNED LANDS IN VIEW OF THE EXPANDED DEFINITION THEREOF PROVIDED ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 5 IN THE INCOME TAX ACT AND THE CAPITAL GAINS ARISING FROM THE IMPUGNED TRANSACTION WAS DULY OFFERED TO TAX BY THE ASSESSEE . 11. IT CAN BE SAFELY CONCLUDED THAT THERE IS NO WRONG A SSUMPTION OF FACTS EITHER. NOW LET US CONSIDER THE POINTS RAISED BY THE A.O. D URING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDING FOR A.Y. 2012-13. VI DE NOTICE DATED 18.07.2014 ISSUED U/S. 142(1) R.W.S. 129 OF THE ACT FOLLOWING QUERY WAS RAISED VIDE QUESTION NO. 13. 13. SIMILARLY AS PER AIR INFORMATION, YOU HAVE SOL D IMMOVABLE PROPERTY FOR RS. 5,91,87,500/-. PLEASE FURNISH COPY OF PURCHASE AND SALE DEED. ALSO GIVE THE WORKING OF CAPITAL GAINS ON SUCH SALES. 12. VIDE REPLY DATED 20.12.2014, THE RELEVANT QUERY RAI SED BY THE A.O. WAS ANSWERED AS UNDER:- 13. FIND ATTACHED HEREWITH PURCHASE DEED, COPY O F AGREEMENT FOR SALE, POSSESSION AGREEMENT, SALE DEED & COPIES OF ACCOUNT OF DANTALI BLK NO. 220 & 221 FOR F.Y. 06-07 & F.Y. 07-08 ON BASIS OF AGREEME NT FOR SALE, POSSESSION AGREEMENT I HAVE ALREADY SHOWN THE CAPITAL GAIN IN THE A.Y. 2008-09, THE COMPUTATION THEREOF IS ATTACHED HEREWITH FOR YOUR R EADY REFERENCE. (ANNEXURE-8) . 13. VIDE REPLY DATED 29.01.2015, THE ASSESSEE FURTHER F URNISHED THE REQUISITE INFORMATION AS UNDER:- FROM: DATE: 29.01.2015 KAVITA VINODBHAI ADANI PAN: ADRPA6552F SHIKHAR, 8 TH FLOOR, NR. MITHAKHALI CIRCLE, NAVRANGPURA, AHMEDABAD. TO: ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 6 THE INCOME TAX OFFICER, WARD- 10(2), AHMEDABAD DEAR SIR, SUB: ASSESSMENT PROCEEDING FOR A.Y. 2012-13 - REG . IN CONNECTION WITH, THE ABOVE REFERRED ASS ESSMENT PROCEEDING I AM PLEASED TO SUBMIT HEREWITH COPY OF LETTER FROM DY. COLLECTO R, STAMP DUTY VALUATION DEPARTMENT, GANDHINAGAR IN RESPECT OF JANTRI VALUE OF LAND BEARING BLOCK NO. 220 & 221 SITUATED AT DANTAIL, GANDHINAGAR AS ON 04.08. 2006. I HOPE YOU WILL FIND THE ABO VE IN ORDER. THANKING YOU, YOURS FAITHFULLY, (KAVITA VINODBHAI ADANI) 14. FROM THE ABOVE, IT CAN BE SEEN THAT THE A.O. HAD MA DE SPECIFIC ENQUIRIES AND THE ASSESSEE FURNISHED SPECIFIC REPLIES WHICH WERE DULY CONSIDERED BY THE A.O. WHILE FRAMING THE ASSESSMENT ORDER 15. NOW LET US CONSIDER THE SHOW CAUSE NOTICE ISSUED B Y THE PRINCIPAL CIT AND THE SAME READS AS UNDER:- OFFICE OF THE PR. COMMISSIONER OF INCOME-TAX-5 - AHMEDA BAD ROOM NO. 127 - 1 ST FLOOR - NARAYAN CHAMBERS B/H . PATANG HOTEL. ASHRAM ROAD, AHMEDABAD TELEPHONE NO. 079-2657 6382 NO.PR.CIT-5/AHM/SHOW CAUSE-263/2016-17 P AN: ADRPA6552F DATE: 01.03.2017 TO SMT. KAVITA VINODBHAI ADANI 'SHIKHAR'-8 LH FLOOR MR. MITHAKHALI CIRCLE NAVRANGPURA, AHMEDABAD SIR, ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 7 SUB.: SHOW CAUSE NOTICE U/S. 263 OF THE INCOME- TAX ACT, 1961 A.Y. 2012-13- REGARDING. PLEASE REFER TO THE ASSESSMENT ORDER U/S. 1 43(3) DATED 26/02/2015 FOR A.Y. 2012-13, WHICH WAS FINALIZED BY THE 1TO, WARD-5(2)(2). AHMEDABAD, DETERMINING TOTAL INCOME AT RS. 3,42,110/- AS PER RETURNED INCOME. 2. FROM THE DETAILS FILED DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, IT IS NOTICED THAT THE- ASSESSEE HAS SOLD IMMOVABLE PROPERTY BEING SURVEY N O. 220 & 221 SITUATED AT DANTALI, GANDHINAGAI FOR AN AMOUNT OF RS. 5,63,52,500/-. THE SE PROPERTIES WERE PURCHASED BY THE ASSESSEE FOR AN AMOUNT OF RS. 19.79.500/- [1123000+ 856500). THE ASSESSEE HAS NOT DECLARED THE CAPITAL GAIN AROSE THEREON IN THE RETURN OF INCOME. THE AO HAS ALSO NOT BROUGHT ON RECORD THE REASON FOR NOT OFFERING THE CAPITAL GAIN IN THE RET URN OF INCOME. 4. FROM THE ABOVE DISCUSSIONS, IT APPEARS THAT THE SAID ASSESSMENT ORDER DATED 26/02/2015 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. YOU ARE, THEREFORE, REQUESTED LO SHOW CAUSE AS TO WHY THE ASSESSMENT PASSED U/S. 143(3) O F THE ACT, WITHOUT VERIFYING THE ISSUES INVOLVED, SHOULD NOT BE ENHANCED OR MODIFIED U/S 26 3 OF THE ACT. 5. IN CASE, YOU HAVE ANY OBJECTION TO THE ACTION PR OPOSED, YOU ARE REQUESTED TO APPEAR BEFORE ME EITHER PERSONALLY OR THROUGH YOUR AUTHORIZED REPRES ENTATIVE ON 06.03.2017 AT 3:30 PM AT MY OFFICE-SITUATED AT THE ABOVE ADDRESS, ALONG WITH A WRITTEN REPLY TO THIS NOTICE. (V.K. PANDEY) PR. COMMISSIONER OF INCOME-TAX-5 AHMEDABAD 16. A PERUSAL OF THE SHOW CAUSE NOTICE CLEARLY SHOWS TH AT THE PRINCIPAL CIT HAS NOT APPRECIATED THE FACTS OF THE CASE IN TRUE PERSPECTI VE. AS MENTIONED ELSEWHERE, THE AGREEMENT TO SELL WAS ENTERED ON 27.03.2007 AND THE POSSESSION WAS GIVEN ON 04.05.2007. THEREFORE, IT IS INCORRECT TO SAY TH AT THE CAPITAL GAINS TAX LIABILITY AROSE IN A.Y. 2012-13 WHEN THE SAME WAS IN A.Y. 200 8-09 AS PER THE RELEVANT PROVISIONS OF THE IT ACT. THEREFORE, IT CANNOT BE S AID THAT THE ASSESSMENT ORDER FRAMED U/S. 143(3) IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 17. IT IS INCORRECT TO SAY THAT THE ASSESSEE HAS RECEIV ED A CONSIDERATION OF RS. 5.63 CRORES. THE CONVEYANCE DEED DATED 25.07.2011 PERUSE D BY THE PRINCIPAL CIT WAS TRI-PARTITE DEED COMPRISING OF SELLER [ASSESSEE ], CONFIRMING PARTY [R.Y. INFRASTRUCTURE PVT. LTD.] AND SHANTIGRAM ESTATE PRI VATE LTD. [ASSIGNEE OF R.Y. ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 8 INFRASTRUCTURE PVT. LTD. AND ULTIMATE BUYER]. AN UN DERSTANDING WAS REACHED BETWEEN R.Y. INFRASTRUCTURE PVT. LTD. AND SHANTIG RAM ESTATE PRIVATE LTD. TO TRANSFER SUCH BENEFICIAL OWNERSHIP RIGHTS IN FAVOUR OF LATTER WHICH WERE ACQUIRED BY R.Y. INFRASTRUCTURE PVT. LTD. FROM THE ASSESSEE BY AGREEMENT TO SELL. 18. AS MENTIONED ELSEWHERE, THE ASSESSEE HAD ALREADY RE CEIVED THE SALE CONSIDERATION OF RS. 28.41 LACS WHEN SHE ENTERED IN TO AGREEMENT TO SELL WITH R.Y. INFRASTRUCTURE PVT. LTD. AND HANDED OVER THE Q UITE POSSESSION IN ITS FAVOUR. 19. ALL THESE FACTS WERE CONSIDERED BY THE A.O. AND BEI NG SATISFIED WITH THE TRANSACTION QUA THE RELEVANT PROVISIONS OF THE ACT, THE ASSESSMENT ORDER WAS FRAMED U/S. 143(3) OF THE ACT:- 20. THE HONBLE HIGH COURT OF GUJARAT IN CIT VS. NIRMA CHEMICAL WORKS LTD. 309 ITR 67 HAS OBSERVED THAT IF ASSESSMENT ORDER WE RE TO INCORPORATE THE REASONS FOR UPHOLDING THE CLAIM MADE BY AN ASSESSEE , THE RESULT WOULD BE AN EPITOME AND NOT AN ASSESSMENT ORDER. IN THIS CASE, DURING THE ASSESSMENT PROCEEDINGS FOR BOTH THE ASSESSMENT YEARS, THE ASSE SSING OFFICER ISSUED A QUERY MEMO TO THE ASSESSEE, CALLING UPON HIM TO JUS TIFY THE GENUINENESS OF THE GIFTS. THE RESPONDENT-ASSESSEE RESPONDED TO THE SAM E BY GIVING EVIDENCE OF THE COMMUNICATIONS RECEIVED FROM HIS FATHER AND HIS SISTER I.E. THE DONORS OF THE GIFTS ALONG WITH THE STATEMENT OF THEIR BANK AC COUNTS. ON PERUSAL, THE ASSESSING OFFICER WAS SATISFIED ABOUT THE CREDITWOR THINESS/CAPACITY OF THE DONORS, THE SOURCE FROM WHERE THESE FUNDS HAVE COME AND ALSO THE CREDITWORTHINESS/CAPACITY OF THE DONOR. ONCE THE AS SESSING OFFICER WAS SATISFIED WITH REGARD TO THE SAME, THERE WAS NO FUR THER REQUIREMENT ON THE PART ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 9 OF THE ASSESSING OFFICER TO DISCLOSE HIS SATISFACTI ON IN THE ASSESSMENT ORDER PASSED THEREON. THUS, THIS OBJECTION ON THE PART OF THE REVENUE CANNOT BE ACCEPTED. 21. AT THIS STAGE, IT WOULD NOT BE OUT OF PLACE TO REFE R TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT IN THE CASE OF SHRI PRAKASH BHAGCHAND KHATRI IN TAX APPEAL NO. 177 WITH TAX APP EAL NO. 178 OF 2016 WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW:- 'WHETHER THE TRIBUNAL IS RIGHT IN LAW AND ON FACTS I N UPHOLDING THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF THE ACT ON MERITS A ND STILL STORING THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 54 OF THE A CT TO THE FILE OF ASSESSING OFFICER EVEN THOUGH THE WORKING OF ALLOWABILITY OF DEDUCTION UNDER SECTION 54F IS AVAILABLE IN THE ORDER UNDER SECTION 263 WHICH IS N OT DISPUTED BY THE ASSESSEE BEFORE ITAT.' 22. AND THE HON'BLE HIGH COURT, AFTER CONSIDERING THE F ACTS, HELD AS UNDER:- '6. IT CAN THUS BE SEEN THAT THOUGH FINAL ORDER OF A SSESSMENT WAS SILENT ON THIS ASPECT, THE ASSESSING OFFICER HAD CARRIED OUT INQUI RIES ABOUT THE NATURE OF SALE OF LAND AND ABOUT THE VALIDITY OF THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. LEARNED COUNSEL FOR THE REVENUE HOWEVER SUBMITTED THAT THESE INQUIRIES WERE CONFINED TO THE CLAIM OF DEDUCTION U NDER SECTION 54F OF THE ACT IN THE CONTEXT OF FULFILLING CONDITIONS CONTAINED THER EIN AND MAY POSSIBLY HAVE NO RELEVANCE TO THE QUESTION WHETHER THE SALE OF LAND GAVE RISE TO A LONG TERM CAPITAL GAIN. LOOKING TO THE TENOR OF QUERIES BY TH E ASSESSING OFFICE AND DETAILS SUPPLIED BY THE ASSESSEE, WE ARE UNABLE TO ACCEPT S UCH A CONDITION. IN THAT VIEW OF THE MATTER, THE OBSERVATION OF THE TRIBUNAL THAT THE ASSESSING OFFICER HAVING MADE INQUIRIES AND WHEN TWO VIEWS ARE POSSIBLE, REV ISIONAL POWERS COULD NOT BE ITA NO. 1284 /AHD/2017 . A.Y. 2012-1 3 10 EXERCISED, CALLED FOR NO INTERFERENCE. SINCE WITH R ESPECT TO COMPUTATION AND ASSERTIONS OF OTHER ASPECTS OF DEDUCTION UNDER SECT ION 54FOFTHE ACT, THE TRIBUNAL HAS REMANDED THE PROCEEDINGS, NOTHING STATED IN THI S ORDER WOULD AFFECT EITHER SIDE IN CONSIDERATIONS OF SUCH CLAIM. 7. NO QUESTION OF LAW ARISES. TAX APPEALS ARE DISMI SSED.' 23. SIMILARLY, HONBLE BOMBAY HIGH COURT IN THE CASE OF GABRIEL INDIA LTD. 203 ITR 108 HAS HELD THAT THE DECISION OF THE ITO CANNOT BE HELD TO BE ERRON EOUS SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE D ISCUSSION IN THAT REGARD. 24. CONSIDERING THE FACTS IN TOTALITY, IN THE LIGHT OF THE JUDICIAL DECISIONS DISCUSSED HEREINABOVE VIS--VIS THE FACTS OF THE CASE IN HAND , IN OUR UNDERSTANDING OF THE LAW, THE ASSESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE PRINCIPAL CIT U/S. 263 OF THE ACT AND RESTORE THAT OF THE A.O. PASSED U/S. 143(3) OF THE ACT. 25. APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 23- 01- 20 18 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOU NTANT MEMBER AHMEDABAD: DATED 23 /01/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT.