Smt. G.Lakshmi, Visakhapatnam V. THE DCIT, CIRCLE-3(1), Visakhapatnam

ITA 231/VIZ/2013

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9684 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 03-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVINDA RAJAN
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition; Assessment record
• Section: 143(3); 147; 148; 263

Judgement Text

ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NO.231/VIZAG/2013 ( / ASSESSMENT YEAR: 2007-08) SMT. G. LAKSHMI, VISAKHAPATNAM VS. DCIT, CIRCLE - 3(1), VISAKHAPATNAM [PAN: AEPPG3307M ] ( % / APPELLANT) ( &'% / RESPONDENT) ./I.T.A.NO.402/VIZAG/2015 ( / ASSESSMENT YEAR: 2007-08) SMT. G. LAKSHMI, VISAKHAPATNAM VS. DCIT, CIRCLE - 3(1), VISAKHAPATNAM [PAN: AEPPG3307M ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI GOVINDA RAJAN, DR / DATE OF HEARING : 23.11.2016 / DATE OF PRONOUNCEMENT : 09.12.2016 ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 2 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED A GAINST ORDER OF CIT-1, VISAKHAPATNAM DATED 14.3.2013, U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') AND CIT(A)-1, VISAKHAPATNAM DATED 30.10.2015, U/S 250 OF THE ACT AND IT PERTAINS TO THE ASSESSMENT YEAR 2007-08. SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMMON, THEY ARE CLUBBED, HEARD TOGETHER AND DI SPOSED-OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON 30.11.2007 DECLARING TOTAL INCOME OF ` 28,29,530/-, BESIDES AGRICULTURAL INCOME OF ` 2,40,000/-. THE ASSESSMENT WAS COMPLETED U/S 143( 3) OF THE ACT ON 24.12.2008 DETERMINING TOTAL INCOME AS R ETURNED BY THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S 148 OF THE ACT WAS ISSUED RE- OPENING THE ASSESSMENT U/S 147 OF THE ACT, FOR THE REASON THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. THE A.O. RE-OPENED THE ASSESSMENT FOR THE REASON THAT ON VERIFICATION OF ASSESSMENT RECORDS, IT WAS NOTIC ED THAT THE ASSESSEE HAS COMPUTED SHORT TERM CAPITAL GAIN TOWARDS SALE O F CERTAIN LANDS, AS ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 3 AGAINST SALE CONSIDERATION OF ` 29,41,000/-, CLAIMED COST OF ACQUISITION OF ` 28,98,700/-. ON VERIFICATION OF THE SALE DEED NO. 4011/2005 DATED 14.9.2005 REGISTERED WITH THE SRO BHOGAPURAM, IT IS NOTICED THAT SAID LAND WAS PURCHASED FOR A CONSIDERATION OF ` 4,45,805/-. THE ASSESSEE HAS CLAIMED COST OF ACQUISITION OF THE PROPERTY OF ` 28,98,700/- AS AGAINST ACTUAL COST OF ACQUISITION OF ` 4,45,805/-, WHICH RESULTED IN EXCESS CLAIM OF COST OF ACQUISITION OF ` 21,75,695/-, CONSEQUENTLY, INCOME CHARGEABLE TO TAX HAS BEEN ESCAPED ASSESSMEN T. SUBSEQUENTLY, THE CASE HAS BEEN TAKEN UP FOR SCRUTINY AND ACCORDI NGLY ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT AND DETE RMINED TOTAL INCOME AS DETERMINED IN THE ORIGINAL ASSESSMENT COMPLETED U/S 143(3) OF THE ACT. 3. THE CIT, RAJAHMUNDRY ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT AND ASKED TO EXPLAIN WHY THE ASSESSMENT ORDER P ASSED BY THE A.O. SHALL NOT BE REVISED, AS THE A.O. FAILED TO EXAMINE COST OF ACQUISITION OF PROPERTY CLAIMED BY THE ASSESSEE. THE CIT FURTHER OBSERVED THAT AS PER THE COPY OF SALE DEED FURNISHED AT THE TIME OF ASSE SSMENT, IT WAS NOTICED THAT THE ASSESSEE HAS PURCHASED LANDS FOR A CONSIDERATION OF ` 4,45,805/-, WHEREAS CLAIMED COST OF ACQUISITION OF ` 28,98,700/-. WHILE COMPLETING THE RE-ASSESSMENT PROCEEDINGS, THE ASSES SING OFFICER ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 4 ACCEPTED THE CONTENTION OF THE ASSESSEE THAT ALTHOU GH COPIES OF UNREGISTERED PURCHASE AND SALE AGREEMENTS WERE NOT FURNISHED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME FILED IN S UPPORT OF COMPUTATION OF SHORT TERM CAPITAL GAIN OF ` 42,300/-, AS THE COMPUTATION SHOWN IN THE RETURN IS BASED ON CONSIDERATION ACTUALLY TRANS ACTED FOR PURCHASE AND RE-SALE OF SAID PROPERTY AND ACCORDINGLY, THE A SSESSING OFFICER IGNORED PURCHASE AND SALE CONSIDERATION AS DEPICTED IN THE RESPECTIVE REGISTERED SALE DEEDS. SINCE, THE A.O. FAILED TO E XAMINE THE RELEVANT DETAILS IN SUPPORT OF COST OF ACQUISITION CLAIMED B Y THE ASSESSEE, THOUGH THE REGISTERED DEEDS SHOWS CONSIDERATION WHICH IS L ESS THAN THE COST CLAIMED BY THE ASSESSEE, THE ASSESSMENT ORDER PASSE D BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. 4. IT IS THE CONTENTION OF THE ASSESSEE THAT THE AS SESSMENT ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT , IS NOT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THE A.O. HAS EXAMINED THE ISSUE OF COMPUTATION OF SHORT TERM CAP ITAL GAIN FROM SALE OF LANDS IN THE RE-ASSESSMENT PROCEEDINGS BY CALLIN G FOR NECESSARY DETAILS OF SALE DEEDS AND PURCHASE DEEDS. THE ASSE SSEE HAS FURNISHED COPIES OF REGISTERED DEEDS AND ALSO FURNISHED UNREG ISTERED SALE AGREEMENTS IN RESPECT OF PURCHASE OF PROPERTY AND A LSO TOWARDS SALE OF PROPERTY AS PER WHICH, CONSIDERATION PAID FOR THE T RANSACTION IS MORE ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 5 THAN THE CONSIDERATION SHOWN IN THE REGISTERED SALE DEEDS. THE ASSESSEE WHILE FILING THE RETURN OF INCOME HAS CONS IDERED THE ACTUAL CONSIDERATION RECEIVED AS PER THE SALE AGREEMENT AS AGAINST WHICH SHE HAD CLAIMED ACTUAL CONSIDERATION PAID AS PER THE SA LE AGREEMENT FOR PURCHASE OF PROPERTY AND ARRIVED AT A SHORT TERM CA PITAL GAIN. THE A.O. AFTER CONSIDERING THE COPIES OF REGISTERED SALE DEE DS AS WELL AS UNREGISTERED SALE AGREEMENTS HAS ACCEPTED THE COMPU TATION MADE BY THE ASSESSEE AND HENCE THE ASSESSMENT ORDER PASSED BY THE A.O. CANNOT BE CONSIDERED AS ERRONEOUS IN SO FAR AS IT I S PREJUDICIAL TO THE INTEREST OF THE REVENUE. 5. THE CIT AFTER CONSIDERING THE EXPLANATIONS OF TH E ASSESSEE, HELD THAT ASSESSMENT ORDER PASSED BY THE A.O. IS ERRONEO US IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE A .O. FAILED TO EXAMINE COST OF ACQUISITION CLAIMED BY THE ASSESSEE WITH NE CESSARY EVIDENCES. THOUGH, THE ASSESSEE SUPPORTS THE COST OF ACQUISITI ON BY UNREGISTERED SALE AGREEMENT, THE FACT THAT THE REGISTERED SALE D EED SHOWS COST OF ACQUISITION OF ` 40,45,805/- AS AGAINST WHICH THE ASSESSEE HAS CLAI MED A COST OF ACQUISITION OF ` 28,98,700/- WHICH RESULTED IN ESCAPEMENT OF INCOME TO THE TUNE OF ` 21,75,695/-. THOUGH, THE DOCUMENTS CLEARLY DEPICTS ACTUAL CONSIDERATION FOR PURCHASE OF PROPER TY, THE A.O. SEEMS TO HAVE CONFUSED THE NEED FOR PROPER SCRUTINY AND OBJE CTIVE EVALUATION OF ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 6 THE UNREGISTERED AGREEMENTS, PARTICULARLY, THE PURC HASE AGREEMENTS WITH ONE OF THE PRINCIPLES OF NATURAL JUSTICE OF PE RHAPS OPPORTUNITY OF BEING HEARD WITHOUT REALIZING AND APPRECIATING THAT THE ASSESSEE IN ANY CASE WAS GIVEN AN OPPORTUNITY TO LEAD EVIDENCES IN SUPPORT OF HER CONTENTIONS BUT THE TASK BEFORE THE A.O. WAS TO EVA LUATE THE AUTHENTICITY OF THE UNREGISTERED PURCHASE AGREEMENTS HAS ALSO EX AMINED THE CORRECTNESS OF THE PURCHASE CONSIDERATION WITH REFE RENCE TO THE MODE OF PAYMENT AND THE MANNER OF UTILIZATION OF SUCH CONSI DERATION BY THE VENDORS. THE A.O. HAS NOT VERIFIED SUCH TASK WHILE SCRUTINIZING THE ASSESSEES CASE IN THE RE-ASSESSMENT PROCEEDINGS. PRIMA-FACIE SUCH NONFEASANCE ON THE PART OF THE THEN A.O. CAN BE SAI D TO HAVE RESULTED IN TAKING AN ERRONEOUS DECISION, WHICH WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY, SET ASIDE ASSESSMENT ORDER P ASSED BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT WITH A DIRECTION T O RE-EXAMINE THE ISSUE OF PURCHASE CONSIDERATION AS CLAIMED BY THE ASSESSE E WITH REFERENCE TO THE UNREGISTERED PURCHASE AGREEMENTS AND TAKE AN OB JECTIVE AND FAIR DECISION AFTER GIVING THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD. AGGRIEVED BY THE CIT ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT THE LD. COMMISSIONER OF INCOME-TAX IS NOT JUSTIFIED IN INVOKING THE PROV ISIONS OF SECTION 263 OF THE ACT, IN AS MUCH AS THE ORDER DATED 30.3.2011 OF THE ASSESSING OFFICER ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 7 IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERES T OF THE REVENUE. THE A.R. FURTHER SUBMITTED THAT THE ASSESSMENT WAS RE-O PENED FOR THE PURPOSE OF EXAMINATION OF COST OF ACQUISITION CLAIM ED BY THE ASSESSEE AND THE A.O. IN THE RE-ASSESSMENT PROCEEDINGS, AFTE R CONSIDERING THE RELEVANT FACTS HAS ACCEPTED THE COST OF ACQUISITION CLAIMED BY THE ASSESSEE, THEREFORE THE CIT WAS COMPLETELY ERRED IN STATING THAT THE ASSESSMENT ORDER PASSED BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 7. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORT ED ORDER OF THE CIT. 8. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE CIT REVISED ASSESSMENT ORDER U/S 263 OF THE ACT, FOR TH E REASON THAT THE A.O. FAILED TO EXAMINE COST OF ACQUISITION OF AN AS SET CLAIMED BY THE ASSESSEE EVEN THOUGH REGISTERED DEEDS SHOWS COST OF ACQUISITION, WHICH IS LESS THAN THE COST OF ACQUISITION CLAIMED BY THE ASSESSEE. THE CIT WAS OF THE OPINION THAT THE A.O. FAILED TO EXAMINE THE ISSUE WITH REFERENCE TO NECESSARY EVIDENCES TO JUSTIFY THE COS T OF ACQUISITION CLAIMED BY THE ASSESSEE. ALTHOUGH, THE ASSESSEE CL AIMS TO HAVE UNREGISTERED AGREEMENT TO SELL TO JUSTIFY THE COST OF ACQUISITION, WHICH IS OVER AND ABOVE THE COST SHOWN IN REGISTERED SALE DE ED, THE A.O. FAILED ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 8 TO EXAMINE THE AUTHENTICITY OF THE SALE AGREEMENTS PRODUCED BY THE ASSESSEE. IT IS THE CONTENTION OF THE ASSESSEE THA T IN THE RE-ASSESSMENT PROCEEDINGS, THE A.O. HAS EXAMINED THE COPIES OF RE GISTERED SALE DEEDS AS WELL AS UNREGISTERED SALE AGREEMENTS TO COME TO THE CONCLUSION THAT THE COST OF ACQUISITION CLAIMED BY THE ASSESSEE IS CORRECT. THE ASSESSEE FURTHER CONTENDED THAT SHE HAD CONSIDERED SALE CONS IDERATION AS PER THE UNREGISTERED SALE AGREEMENT AS AGAINST WHICH CLAIME D COST OF ACQUISITION AS PER UNREGISTERED SALE AGREEMENT FOR PURCHASE OF PROPERTY. THESE FACTS WERE FURNISHED BEFORE THE A.O. AND THE A.O. A FTER SATISFIED WITH THE EXPLANATIONS OFFERED BY THE ASSESSEE HAS CHOSEN TO ACCEPT COMPUTATION OF CAPITAL GAIN, HENCE, THE ASSESSMENT ORDER PASSED BY THE A.O. CANNOT BE CONSIDERED AS ERRONEOUS IN SO FAR AS IT IS PREJU DICIAL TO THE INTEREST OF THE REVENUE. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THE ASSESSEE HAS CONSIDERED SALE CONSID ERATION TOWARDS SALE OF PROPERTY AS PER THE UNREGISTERED SALE AGREEMENT, AS AGAINST WHICH SHE HAD CONSIDERED COST OF ACQUISITION OF THE PROPE RTY AS PER THE UNREGISTERED SALE AGREEMENT FOR PURCHASE OF PROPERT Y. ALTHOUGH, REGISTERED SALE DEEDS TOWARDS PURCHASE AND SALE OF PROPERTY SHOWS A CONSIDERATION, WHICH IS LESS THAN CONSIDERATION CLA IMED BY THE ASSESSEE, THE FACT THAT THESE DOCUMENTS WERE FURNISHED BEFORE THE A.O. AT THE TIME OF RE-ASSESSMENT PROCEEDINGS AND THE A.O. HAS CONSIDERED ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 9 DOCUMENTS FURNISHED BY THE ASSESSEE TO CAME TO THE CONCLUSION THAT THE COST OF ACQUISITION CLAIMED BY THE ASSESSEE IS AS P ER THE UNREGISTERED SALE AGREEMENTS. THEREFORE, WE ARE OF THE VIEW THA T CIT WAS ERRED IN STATING THAT ASSESSMENT ORDER PASSED BY THE A.O. IS ERRONEOUS. 9. HAVING SAID, LET US EXAMINE WHETHER THE ASSESSME NT ORDER PASSED BY THE A.O. IS PREJUDICIAL TO THE INTEREST OF THE R EVENUE. THE ASSESSEE HAS CONSIDERED SALE CONSIDERATION AS PER UNREGISTER ED SALE AGREEMENT, AS AGAINST WHICH SHE HAD CLAIMED COST OF ACQUISITIO N AS PER THE UNREGISTERED SALE AGREEMENT FOR PURCHASE OF PROPERT Y AND COMPUTED SHORT TERM CAPITAL GAIN OF ` 42,300/-. IF YOU CONSIDER REGISTERED DEEDS FOR PURCHASE AND SALE OF PROPERTY, THE ASSESSEE HAS PURCHASED THE IMPUGNED PROPERTY FOR A CONSIDERATION OF ` 4,45,805/- AND SOLD SAID LAND FOR A CONSIDERATION OF ` 4,50,000/-. IF YOU WORK OUT THE DIFFERENCE BETWEEN SALE CONSIDERATION AND COST OF ACQUISITION, THE SHORT TERM CAPITAL GAIN WORKS OUT TO LESS THAN THE CAPITAL GAI N DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED FOR THE YEAR . THE CIT CLAIMS THAT THE ASSESSEE HAS CONSIDERED SALE CONSIDERATION AS P ER UNREGISTERED SALE AGREEMENT, HOWEVER, NOT SUPPORTED THE COST OF ACQUI SITION WITH REGISTERED SALE DEED. WE DO NOT FIND ANY MERITS IN THE FINDINGS OF THE CIT, FOR THE REASON THAT WHEN CONSIDERATION FOR TRA NSFER IS CONSIDERED AS PER UNREGISTERED SALE AGREEMENT, IT IS UNJUSTIFIED TO ADOPT COST OF ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 10 ACQUISITION AS PER REGISTERED SALE DEED. THEREFORE , WE ARE OF THE VIEW THAT THERE IS NO PREJUDICE IS CAUSED TO THE REVENUE TOWARDS COMPUTATION OF SHORT TERM CAPITAL GAIN FROM SALE OF PROPERTY AN D HENCE, ASSESSMENT ORDER PASSED BY THE A.O. IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE. 10. THE CIT HAS POWER TO REVISE ASSESSMENT ORDER U /S 263 OF THE ACT, BUT TO INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT, THE TWIN CONDITIONS MUST BE SATISFIED I.E. (1) THE ORDER OF THE A.O. IS ERRONEOUS (2) FURTHER IT MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS BOTH THE CONDITIONS ARE SATISFIED, THE CIT CANNOT A SSUME JURISDICTION U/S 263 OF THE ACT. IT IS NOT NECESSARY THAT EVERY ORD ER WHICH IS ERRONEOUS MAY BE PREJUDICIAL TO THE INTEREST OF THE REVENUE O R VICE VERSA. IN SOME CASES THE ORDER PASSED BY THE A.O. MAY BE ERRONEOUS BUT IT MAY NOT BE PREJUDICIAL TO THE INTEREST OF THE REVENUE OR VICE VERSA. UNLESS THE ORDER PASSED BY THE A.O. IS ERRONEOUS AND ALSO PREJUDICIA L TO THE INTEREST OF THE REVENUE, THE CIT CANNOT ASSUME JURISDICTION TO REVISE THE ASSESSMENT ORDER, THIS IS BECAUSE THE TWIN CONDITIO NS I.E. THE ORDER IS ERRONEOUS AND THE SAME IS PREJUDICIAL TO THE INTERE ST OF THE REVENUE ARE CO-EXIST. 11. IN THE PRESENT CASE ON HAND, ON PERUSAL OF THE FACTS AVAILABLE ON RECORD, WE FIND THAT THE A.O. HAS CONDUCTED DETAILE D ENQUIRY AND ALSO EXAMINED THE ISSUE OF COMPUTATION OF COST OF ACQUIS ITION IN THE RE- ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 11 ASSESSMENT PROCEEDINGS. THE RE-ASSESSMENT PROCEEDI NG WAS INITIATED FOR A SPECIFIC PURPOSE OF EXAMINATION OF COST OF AC QUISITION CLAIMED BY THE ASSESSEE. IN THE RE-ASSESSMENT PROCEEDINGS, TH E A.O. AFTER SATISFIED WITH THE EXPLANATIONS OFFERED BY THE ASSESSEE, HAS ACCEPTED EXPLANATIONS AND COMPLETED ASSESSMENT BY ACCEPTING THE INCOME ASSESSED IN THE ORIGINAL ASSESSMENT. ONCE, THE ISS UES ON WHICH CIT WANTS FURTHER VERIFICATION, HAVE BEEN CONSIDERED BY THE A.O. AT THE TIME OF ASSESSMENT, THE CIT CANNOT ASSUME JURISDICTION U NLESS PROVED THAT THE ASSESSMENT ORDER PASSED BY THE A.O. IS ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THE PRESENT CASE, THE ASSESSMENT ORDER PASSED BY THE A.O. IS NEITHER ERRO NEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE, THEREFORE, THE CIT WAS ERRED IN ASSUMING JURISDICTION TO REVISE THE ASSESSMENT ORDER U/S 263 OF THE ACT. WE, THEREFORE, SET ASIDE ORDER PASSED BY THE CIT U/S 26 3 OF THE ACT AND RESTORE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143 (3) R.W.S. 147 OF THE ACT. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO.402/VIZAG/2015: 13. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST ORDER OF CIT(A)-1, VISAKHAPATNAM DATED 30.10.2015 AND IT PER TAINS TO THE ASSESSMENT YEAR 2007-08. ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 12 14. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAS FILED THIS APPEAL AGAINST CONSEQUENTIAL ORDER PASSED BY THE A. O. U/S 143(3) R.W.S. 263 OF THE ACT. THE A.O. COMPLETED ASSESSMENT U/S 143(3) R.W.S. 263 OF THE ACT AND DETERMINED TOTAL INCOME OF ` 52,73,725/- INTER-ALIA MAKING ADDITION OF ` 24,44,195/- TOWARDS SHORT TERM CAPITAL GAIN FROM S ALE OF PROPERTY AS PER THE DIRECTIONS OF THE CIT U/S 263 O F THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) FOR THE REASONS RECORDED IN HIS ORDER DATED 30.10.2015, CONFIRMED ADDITIONS MADE BY THE A.O. A GGRIEVED BY THE CIT(A) ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 15. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATE RIALS AVAILABLE ON RECORD, WE FIND THAT THE A.O. HAS MADE ADDITION OF ` 24,44,195/- UNDER THE HEAD SHORT TERM CAPITAL GAINS TOWARDS SALE OF P ROPERTY AS PER THE DIRECTIONS OF THE CIT. IN THE PRECEDING PARAGRAPHS , WE SET ASIDE THE ORDER PASSED BY THE CIT U/S 263 OF THE ACT IN ITA N O.231/VIZAG/2013. SINCE WE SET ASIDE THE ORDER PASSED BY THE CIT, CON SEQUENTIAL ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 263 OF THE ACT BECOMES INFRUCTUOUS. HENCE, WE SET ASIDE THE ORDER PASSED BY THE CIT AND ALLOWED APPEAL FILED BY THE ASSESSEE. ITA NO.231/VIZAG/2013 & 402/VIZAG/2015 SMT. G. LAKSHMI, VISAKHAPATNAM 13 16. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED . THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 9 TH DEC16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 9.12.2016 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SMT. G. LAKSHMI, D.NO.49-54-4/3 (36), M.K. PARADISE, FLAT NO.404, BALAYYA SASTRY LAYOUT, VISAKHAPATNAM 2. / THE RESPONDENT THE DCIT, CIRCLE-3(1), VISAKHAP ATNAM 3. + / THE CIT-1, VISAKHAPATNAM 4. + ( ) / THE CIT (A)-1, VISAKHAPATNAM 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM SL. NO. DESCRIPTION DATE INITIALS 1. DATE OF DICTATION BY THE AUTHOR 24.11.2016 SR.P S 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 28.11.2 016 SR.PS 3. DRAFT PLACED BEFORE THE SECOND MEMBER SR. PS 4. DRAFT APPROVED BY THE SECOND MEMBER SR. PS 5. DATE OF APPROVED ORDER COMES TO THE SR. PS SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER SR. PS 7. DATE OF FILE SENT TO THE BENCH CLERK SR. PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK HD. C LK 9. DATE OF DISPATCH OF ORDER SR. PS