JYTSNA SUNDERLAL SHROFF, MUMBAI V. PR CIT 25 , MUMBAI

ITA 216/MUM/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3032 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 08-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A. MOHAN
• Keywords: Capital asset; Revision of order; Cost of acquisition; Difference of opinion; Valuation report; Change of opinion; Capital Gains
• Section: 54; 263; 143(3); 142(1); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 216/MUM/2020 ASSESSMENT YEAR: 2015-16 JYOTSNA SUNDERLAL SHROFF, 1 ST FLOOR, PANNA VIHAR, VILE PARLE (EAST), MUMBAI-400057. VS. PR. COMMISSIONER OF INCOME TAX-25, 401/C-10, 4 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051. PAN NO. AAYPS3714K APPELLANT RESPONDENT ASSESSEE BY : MR . K. GOP AL , AR REVENUE BY : MR. A. MOHAN , DR DATE OF HEARING : 0 4 /11/2020 DATE OF PRONOUNCEMENT : 23/11/2020 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2015-16. THE APPEAL IS DIRECTED AGAINST THE ORDER P ASSED BY THE PR. COMMISSIONER OF INCOME TAX-25 MUMBAI [IN SHORT PR. CIT] U/S 263 OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : 1. THE PR. CIT ERRED IN INVOKING THE PROVISIONS OF SEC TION 263 OF THE ACT WITHOUT APPRECIATING THAT THE JURISDICTION TO INVOKE THE PR OVISIONS OF SECTION 263 OF ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 2 THE ACT IS NOT SATISFIED. THUS, THE ORDER PASSED U/ S263 IS BAD IN LAW AND THE SAME MAY BE QUASHED. 2. THE PR. CIT FAILED TO APPRECIATE THAT THE ORIGINAL ASSESSMENT ORDER DATED 07.09.2017 HAS BEEN PASSED U/S143(3) BY THE A.O. AF TER DUE APPLICATION OF MIND AND AFTER CARRYING OUT PROPER VERIFICATION WIT H RESPECT TO THE CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT. THUS, THE AC TION OF THE PR. CIT IN INVOKING THE PROVISIONS OF SECTION 263 TO VERIFY TH E SAME CLAIM AGAIN IS NOTHING BUT THE CHANGE OF OPINION WHICH IS NOT PERM ISSIBLE AS PER LAW. THUS, THE ORDER PASSED U/S 263 IS BAD IN LAW AND THE SAME MAY BE QUASHED. 3. THE PR. CIT ERRED INVOKING THE JURISDICTION U/S 263 BY DIRECTING THE A.O. TO RE- EXAMINE THE CLAIM OF DEDUCTION U/S 54 OF THE ACT BY CONSTRUING THE INVESTMENT MADE IN A NEW RESIDENTIAL FLAT AS THE CA SE OF ACQUISITION AND NOT CONSTRUCTION WITHOUT APPRECIATING THAT SAID CLAIM H AS ALREADY BEEN VERIFIED BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEED INGS AND ALLOWED THE CLAIM U/S 54 BY TAKING ONE OF THE PERMISSIBLE VIEWS . THUS, THE ORDER PASSED U/S 263 IS NOT JUSTIFIED AND THE SAME MAY BE QUASHE D. 4. THE PR. CIT FAILED TO APPRECIATE THAT THE ASSESSEE HAS SATISFIED ALL THE ESSENTIAL CONDITIONS TO CLAIM THE DEDUCTION U/S 54 OF THE ACT . THUS, THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION U/S 54 OF THE ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2015-16 ON 2 9.08.2015 DECLARING TOTAL INCOME AT RS.62,28,820/-. IN THE ASSESSMENT U/S 143 (3) DATED 07.09.2017, THE ASSESSING OFFICER (AO) ACCEPTED THE ABOVE INCOME SH OWN BY THE ASSESSEE. ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 3 SUBSEQUENTLY, THE PR. CIT ISSUED NOTICE U/S 263 DA TED 15.07.2019 TO THE ASSESSEE STATING THAT THE ASSESSMENT ORDER DATED 07 .09.2017 PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REV ENUE WITH THE FOLLOWING OBSERVATIONS : (A) COST OF ACQUISITION TAKEN AS ON 01.04.1981, AS PER VALUATION REPORT OF M/S. MUZOOMDAR ASSOCIATES PVT. LTD., CHARTERED ENGINEERS , CORPORATE VALUERS & SURVEYORS, HOWEVER, THE SAME IS NEITHER SIGNED BY A NYBODY NOR PROPERLY STAMPED. (B) DURING THE YEAR ASSESSEE HAS MADE INVESTMENT IN RESIDENTIAL PROPERTY OF RS.3,62,97,800/-. AS PER ALLOTMENT LETTER DT. 05.02 .2015, THE BUILDER HAS RECEIVED THE CHEQUE NO. 00124 DT. 04.02.2014 OF RS.3,50,00,000/- AND CHEQUE NO. 00125 DT. 05.02.2014 OF RS.12,97,800/- WHEREAS AS PER AGREEME NT DATED 02.11.2015, THE DATE OF CHEQUE FOR RS.3,50,00,000/- IS SHOWN AS 04.02.20 15. IN THE ABSENCE OF BANK STATEMENT ON RECORD, IT IS NOT POSSIBLE TO VERIFY T HE CORRECTNESS OF THE SAME. (C) FURTHER AS PER LETTER DT. 24.08.2017 OF M/S. GA NESH & RAJENDRA ASSOCIATES, C.AS, IT WAS SUBMITTED THAT AS PER INFORMATION PROVIDED B Y THE BUILDER TO THE ASSESSEE, THE OCCUPATION CERTIFICATE HAS BEEN RECEIVED BY THE BUI LDER FOR THE SAID BUILDING AND THE POSSESSION WOULD BE GIVEN OF THE RESIDENTIAL FLAT S HORTLY WHICH ONLY MEANS THAT TILL F.Y. 2017-18 RELEVANT TO A.Y. 2018-19, THE ASSESSEE HAS NOT RECEIVED THE POSSESSION OF THE PROPERTY. AS THE NEW PROPERTY IN WHICH CAPIT AL GAIN IS INVESTED IS NOT PURCHASED/CONSTRUCTED BEFORE ONE YEAR AND WITHIN TH E PERIOD OF THREE YEARS, THE CAPITAL GAIN CLAIMED NEEDS TO BE DISALLOWED AS THE PROPERTY IS SOLD DURING THE F.Y. 2014-15 RELEVANT TO A.Y. 2015-16 AND TILL F.Y. 2017 -18, POSSESSION IS NOT RECEIVED WHICH IS BEYOND THREE YEARS. 3.1 THE ASSESSEE FILED A REPLY TO THE ABOVE NOTICE AND SUBMITTED THAT ALL THE NECESSARY DETAILS TO JUSTIFY THE CLAIM U/S 54 HAD D ULY BEEN SUBMITTED BEFORE THE AO. IT WAS ALSO EXPLAINED THAT SECTION 54 REQUI RES THE ASSESSEE TO HAVE CONSTRUCTED RESIDENTIAL PROPERTY WITHIN A PERIOD OF THREE YEARS ON THE DATE OF ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 4 TRANSFER; THE ASSESSEE ENTERED INTO AN AGREEMENT DA TED 02.11.2015 FOR PURCHASE OF RESIDENTIAL FLAT AND THE OCCUPATION CER TIFICATION/COMPLETION CERTIFICATE WAS OBTAINED ON 25.07.2017 WHICH IS WEL L WITHIN THE PERIOD OF THREE YEARS FROM THE DATE OF TRANSFER. IT WAS FURTH ER EXPLAINED THAT OBTAINING POSSESSION IS NOT A PRE-CONDITION TO CLAIM EXEMPTIO N U/S 54 OF THE ACT. IN THIS REGARD, THE ASSESSEE FILED BEFORE THE PR. CIT (I) B ANK STATEMENT SHOWING DETAILS OF PAYMENTS, (II) DULY SIGNED AND STAMPED VALUATION REPORT FROM MAZUMDAR ASSOCIATES PVT. LTD. DATED 02.08.2006 AND (III) OCC UPATION/COMPLETION CERTIFICATE DATED 25.07.2017 ISSUED BY MCGM TO THE DEVELOPER. HOWEVER, THE PR. CIT WAS NOT CONVINCED WITH THE AB OVE REPLY OF THE ASSESSEE ON THE GROUND THAT IN PARAGRAPH 18 OF THE AGREEMENT, THE BUILDER TALKS ABOUT MAKING ENDEAVOR TO COMPLETE THE CONSTRU CTION AT THE EARLIEST BY 31.03.2017 ; HOWEVER, THE OCCUPANCY CERTIFICATE REC EIVED BY MCGM ON 25.07.2017 AND THEREFORE, THE ASSESSEE COULD NOT HA VE PURCHASED/OCCUPIED THE FLAT BEFORE RECEIVING THE SAID OCCUPANCY CERTIF ICATE. THUS IT IS OBSERVED BY THE PR. CIT THAT AS THE ASSESSEE HAD PURCHASED THE FLAT AND NOT CONSTRUCTED, THE TIME LIMIT AVAILABLE TO HER WAS TWO YEARS AND T HE TIME LIMIT FOR MAKING INVESTMENT WAS TILL 19.11.2016 AND SINCE THE DATE O F SALE OF THE OLD PROPERTY WAS 19.11.2014, THE DATE OF OCCUPANCY CERTIFICATE I .E. 25.07.2017 IS BEYOND THE LIMITATION OF TWO YEARS FROM THE DATE OF TRANSFER. THUS OBSERVING THAT THE ASSESSMENT ORDER DATED 07.09.2017 PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, THE PR. CIT DIRECTED THE AO TO MAKE A DE NOVO ORDER AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO MADE ADEQU ATE INQUIRY AND ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 5 EXAMINED THE ISSUE OF INVESTMENT MADE IN THE RESIDE NTIAL FLAT AND CLAIM OF EXEMPTION U/S 54 MADE TO THAT EXTENT; WHILE REPLYIN G TO THE QUERIES RAISED BY THE AO, THE ASSESSEE DULY FILED COPY OF THE ALLOTME NT LETTER DATED 05.02.2015 RECEIVED FROM THE BUILDER WITH RESPECT TO THE NEW R ESIDENTIAL FLAT ; THE ASSESSEE ALSO FURNISHED REGISTERED PURCHASE AGREEME NT DATED 02.11.2015 SHOWING THE DETAILS OF PAYMENT TOWARDS THE SAME. IT IS FURTHER STATED THAT A COPY OF RECEIPT OF PAYMENT OF RS.3,50,00,000/- MADE THROUGH CHEQUE NO. 000124 DATED 04.02.2015 DRAWN ON HDFC BANK WAS ALSO FURNISHED TO THE AO AND FROM THE AGREEMENT IT IS APPARENT THAT THE ASSE SSEE HAD MADE INVESTMENT WITHIN THE TIME PERIOD PRESCRIBED U/S 54 OF THE ACT . STATING THAT THE ASSESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJUDICI AL TO THE INTEREST OF REVENUE, THE LD. COUNSEL RELIES ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CIT V. GABRIEL INDIA LTD . [1993] 203 ITR 108 (BOM), CIT V. NIRAV MODI [2017] 390 ITR 292 (BOM) AND THE DECISION OF THE H ONBLE SUPREME COURT IN MALABAR INDUSTRIES CO. LTD. V. CIT [2000] 243 83 (SC). 4.1 THE LD. COUNSEL FURTHER SUBMITS THAT AS PER SEC TION 54 OF THE ACT, THE TIME LIMIT FOR PURCHASING A NEW RESIDENTIAL UNIT IS ONE YEAR OR TWO YEARS AFTER THE DATE OF TRANSFER AND IN CASE OF CONSTRUCTION IT IS THREE YEARS FROM THE DATE OF TRANSFER ; IN THE PRESENT CASE SINCE THE TRANSFE R WAS DONE ON 19.11.2014, THE TWO YEARS COMPLETED ON 19.11.2016 IN CASE OF PURCHA SE AND THREE YEARS COMPLETED ON 19.11.2017 IN CASE OF CONSTRUCTION. TH US IT IS STATED BY HIM THAT AS THE ASSESSEE BOOKED A RESIDENTIAL FLAT IN THE UN DER CONSTRUCTION PROJECT, THE TIME LIMIT AVAILABLE TO THE ASSESSEE TO MAKE AN INV ESTMENT IS THREE YEARS FROM THE DATE OF TRANSFER ; THE CAPITAL GAINS RECEIVED O N TRANSFER OF OLD PROPERTY WAS INVESTED BY THE ASSESSEE IN A NEW RESIDENTIAL FLAT IN UNDERCONSTRUCTION ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 6 BUILDING FOR WHICH THE ASSESSEE RECEIVED AN ALLOTME NT LETTER DATED 05.02.2015 ON MAKING PAYMENT OF RS.3,62,97,800/- IT IS FURTHER STATED THAT THE OCCUPATION/COMPLETION CERTIFICATE WAS RECEIVED ON 2 5.07.2017 ; THE CONSTRUCTION OF THE BUILDING GOT COMPLETED WITHIN T HREE YEARS FROM THE DATE OF TRANSFER, HOWEVER, THE POSSESSION WAS HANDED OVER T O THE ASSESSEE ON 26.03.2018 ; THE DELAY IN OBTAINING THE POSSESSION WAS NOT ATTRIBUTABLE TO THE ASSESSEE. IN THIS REGARD, RELIANCE IS PLACED BY HIM ON THE DECISION BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. MRS. HILLA J.B. WADIA [1995] 216 ITR 376 (BOM), CIT V. GIRISH L. RAGHA [2016] 289 CTR 213 (BOM) AND THE ORDER OF THE TRIBUNAL IN THE CASE OF HASMUKH N GALA V. ITO [2017] 83 TAXMANN.COM 49 (MUMBAI-TRIB.). 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE (DR) EXPLAINS THAT AS THE NEW PROPERTY IN WHICH CAPITAL GAIN IS I NVESTED IS NOT PURCHASED/CONSTRUCTED BEFORE ONE YEAR OR WITHIN A P ERIOD OF THREE YEARS, THE CAPITAL GAINS NEED TO BE DISALLOWED AS THE PROPERTY IS SOLD DURING THE FINANCIAL YEAR (FY) 2014-15 RELEVANT TO THE AY 2015-16 AND TI LL FY 2017-18, POSSESSION IS NOT RECEIVED WHICH IS BEYOND THREE YEARS. DRAWING OUR ATTENTION TO EXPLANATION-2 TO SECTION 263 INSERTED BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015, THE LD. DR SUB MITS THAT THE PR. CIT HAS RIGHTLY PASSED ORDER U/S 263 AS (I) THE AO HAS PASS ED THE ORDER WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE, (II) THE ORDER IS PASSED ALLOWING RELIEF U/S 54 WITHOUT INQUIRING INTO THE CLAIM. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 7 WE FIND THAT IN RESPONSE TO NOTICE U/S 142(1) DATE D 02.08.2017, THE ASSESSEE FILED BEFORE THE AO LETTER DATED 10.08.201 7 RECEIVED IN THE OFFICE OF THE AO ON THE SAME DATE THE FOLLOWING DETAILS : 1. DETAILS OF CAPITAL ASSET SOLD DURING THE YEAR 2. PROOF OF INVESTMENT MADE FOR CLAIMING EXEMPTION U/S 54 3. DETAILS OF INVESTMENT DURING FY 2014-15 I.E. AY 201 5-16 THE ASSESSEE HAD FILED BEFORE THE AO A COPY OF PURC HASE AGREEMENT DATED 02.11.2015 REGISTERED ON 07.11.2015, ALONG WI TH THE ALLOTMENT LETTER DATED 05.02.2015; THE SAID AGREEMENT CONTAINS DETAI LS OF PAYMENT, WHEREIN IT IS MENTIONED THAT THE ASSESSEE HAD PAID A SUM OF RS .3,50,00,000/- BY CHEQUE NO. 000124 DATED 04.02.2015 DRAWN ON HDFC BANK IN F AVOUR OF THE DEVELOPER. THUS THE AO HAS MADE NECESSARY INQUIRIES/VERIFICAT ION BEFORE MAKING THE ORDER U/S 143(3) OF THE ACT. 6.1 THE CAPITAL GAIN ARISING ON THE TRANSFER OF A R ESIDENTIAL HOUSE IS EXEMPT U/S 54 IN THE FOLLOWING CIRCUMSTANCES: I. THE ASSET TRANSFERRED IS A RESIDENTIAL HOUSE, THE I NCOME OF WHICH IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY; II. THE ASSET TRANSFERRED IS A LONG-TERM CAPITAL ASSET AND HENCE THERE IS A LONG-TERM CAPITAL GAIN; III. THE ASSET HAS BEEN TRANSFERRED BY AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY ; IV. THE ASSESSEE HAS, PURCHASED ONE RESIDENTIAL HOUSE P ROPERTY IN INDIAN WITHIN ONE YEAR BEFORE OR TWO YEARS AFTER TH E DATE ON ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 8 WHICH TRANSFER TOOK PLACE OR CONSTRUCTED THE SAME W ITHIN THE 3 YEARS AFTER THE DATE OF SUCH TRANSFER. IF ALL THESE FOUR CONDITIONS ARE SATISFIED THEN THE ASSESSEE CAN CLAIM THE EXEMPTION UNDER SECTION 54. 6.2 IN THE INSTANT CASE, THE ASSESSEE SOLD HER RESI DENTIAL HOUSE ON 19.11.2014. THE CAPITAL GAINS RECEIVED ON TRANSFER OF OLD PROPERTY WAS INVESTED BY THE ASSESSEE IN A NEW RESIDENTIAL FLAT IN UNDER CONSTRUCTION BUILDING FOR WHICH THE ASSESSEE RECEIVED AN ALLOTME NT LETTER DATED 05.02.2015 ON MAKING PAYMENT OF RS.3,62,97,800/-. A SUM OF RS. 3,50,00,000/- WAS PAID THROUGH CHEQUE NO. 00124 DATED 04.02.2015 TOWARDS C ONSIDERATION AND A SUM OF RS.12,97,800/- WAS PAID THROUGH CHEQUE NO. 0 0125 DATED 05.02.2015 TOWARDS SERVICE TAX. THUS SUBSTANTIAL CONSIDERATION TOWARDS INVESTMENT WAS MADE WITHIN TWO YEARS ITSELF FROM THE DATE OF TRANS FER. THE PURCHASE AGREEMENT IS DATED 02.11.2015 REGISTERED ON 07.11.2 015 ALONG WITH ALLOTMENT LETTER DATED 05.02.2015. IN GIRISH L. RAGHA (SUPRA), THE HONBLE BOMBAY HIGH COURT HAS HELD TH AT WHERE ASSESSEE SOLD RESIDENTIAL PROPERTY AND ENTER ED INTO AN AGREEMENT WITH A BUILDER FOR PURCHASING FLAT FOR WHICH HE INVESTED SALE PROCEEDS WITHIN PRESCRIBED PERIOD OF TWO MERELY BECAUSE ASSESSEE GO T OCCUPANCY CERTIFICATE AFTER 4 YEARS AND SUCH DELAY WAS BEYOND CONTROL OF ASSESSEE, ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 54 WAS TO BE ALLOWED. IN MRS. HILLA J.B. WADIA (SUPRA), THE ASSESSEE WAS HELD ENTITLED TO THE BENEFIT OF SECTION 54(1) WHERE SHE HAD ACQUIRED SUB STANTIAL DOMAIN OVER THE FLAT PURCHASED UNDER AN AGREEMENT WITH THE CO-OPERA TIVE SOCIETY COUPLED ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 9 WITH THE PAYMENT DONE ALMOST THE ENTIRE COST OF CON STRUCTION WITHIN A PERIOD OF TWO YEARS. IT IS WELL-SETTLED THAT IMMOVABLE PROPERTY IS NOT CONVEYED BY DELIVERY OF POSSESSION, BUT BY A DULY REGISTERED DEED. FURTHER, IT IS THE DATE OF EXECUTION OF REGISTERED DOCUMENT, NOT THE DATE OF DELIVERY OF PO SSESSION OR THE DATE OF REGISTRATION OF DOCUMENT WHICH IS RELEVANT. ONCE TH E EXECUTED DOCUMENTS ARE REGISTERED, THE TRANSFER WILL TAKE PLACE ON THE DAT E OF EXECUTION OF DOCUMENTS AND NOT ON THE DATE OF REGISTRATION OF DOCUMENTS AS HELD IN ALAPATI VENKATARAMIAH V. CIT (1965) 57 ITR 185 (SC), CIT V. PODAR CEMENTS PVT. LTD. (1997) 226 ITR 625 (SC) AND CIT V. VISHNU TRADING & INVESTMENT CO . (2003) 259 ITR 724 (RAJ). IN MALABAR INDUSTRIAL CO. LTD V CIT (2000) 243 ITR 83 (SC), IT IS HELD THAT THE COMMISSIONER HAS TO BE SATISFIED WITH THE TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THE CONDITIONS IS ABSENT- IF THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIA L TO THE REVENUE- RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. IN VIEW OF THE ABOVE FACTUAL SCENARIO AND POSITION OF LAW, THE ORDER OF THE PR. CIT U/S 263 OF THE ACT IS HEREBY QUASHED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO. 216/MUM/2020 JYOTSANA SUNDERLAL SHROFF 10 ORDER PRONOUNCED IN THE OPEN COURT ON 23/11/2020. SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 23/11/2020 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY.//ASST. REGISTRAR) ITAT, MUMBAI