Shri Pareshbhai Parsottambhai Patel, Surat V. The Pr. Commissioner of Income Tax - 1, Surat

ITA 349/SRT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8126 (ITAT-SURAT)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 16-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Capital asset; Revision of order; Principle of natural justice; Prejudicial to interest; Onus to prove; Capital Gains
• Section: 54; 263; 143(3); 54B; 142(1); 143(2); 264; 192; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.349/SRT/2023 (Ǔनधा[रणवष[ / Assessment Year: (2018-19) (Physical Court Hearing) Pareshbhai Parsottambhai Patel B/5, Jalaram Krupa, Near Silver Point, Nana Varachha, Surat- 395006 Vs. Principal Commissioner of Income Tax, Surat-1, Room No.123, 1 st Floor, Aayakar Bhawan, Majura Gate, Surat- 395001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ANQPP 8893 F (Appellant) (Respondent) िनधाŊįरती की ओर से /Assessee by : Shri P.M. Jagasheth, CA राजèव कȧ ओर से /Respondent by : Shri Ravi Kant Gupta, CIT-D.R सुनवाई की तारीख/ Date of Hearing : 15/03/2024 घोषणा की तारीख/Date of Pronouncement : 26/03/2024 आदेश / ORDER PER DR. A. L. SAINI, AM: By way of this appeal, the assessee has challenged the correctness of the order passed by the Learned Principal Commissioner of Income Tax-1, Surat (in short “ld. PCIT”] dated 25.03.2023, under section 263 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), for assessment year 2018-19. 2. The grievances raised by the assessee are as follows: “1. On the facts and in the circumstances of the case as well as law on the subject, the learned Pr. Commissioner of the Income Tax has grievously erred in initiating the proceedings u/s 263 of the Act, 1961. 2. On the facts and in the circumstances of the case as well as law on the subject, the learned Pr. Commissioner of the Income Tax has grievously erred in assuming jurisdiction u/s 263 of the Act, 1961. 3. On the facts and in the circumstances of the case as well as law on the subject, the learned Pr. Commissioner of the Income Tax has erred in violating the principles of natural justice by not the mentioning the grounds for initiating actin u/s 263 of the Income Tax Act, 1961 in the show cause notice issued. As such the order passed u/s 263 is void ab-initio. The action of the Ld. CIT was wholly unreasonable, uncalled for the bad in law. Page | 2 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel 4. On the facts and in the circumstances of the case as well as law on the subject, that the order of u/s 263 is merely ‘change in opinion’. The order u/s 143(3) r.w.s. 143(3A and 143(3B) of the Income Tax Act passed by the Ld AO does not in any way represent erroneous order. The action of the Ld. Pr.CIT was wholly unreasonable, uncalled for and bad in law. 5. On the facts and in the circumstances of the case as well as law on the subject, the learned Pr. Commissioner of Income Tax has grievously erred in assuming that the assessing officer had not verified the deduction claim u/s 54B of the Income Tax Act, 1961 and not made proper inquiry on finalized the order of assessment u/s 143(3) rws. 143(3A) and 143(3B) of the I.T. Act is contrary to the fact of the case. 6. On the facts and in the circumstances of the case as well as law on the subject, the entire proceedings are bad-in-law and invalid as assessment order u/s 143(3) r.w.s. 143(3A) and 143(3B) of the Act for the same year were framed, wherein due inquiry was made. 7. On the facts and in the circumstances of the case as well as law on the subject, the learned Pr, Commissioner of Income Tax has grievously erred in setting aside the assessment order framed u/s 143(3) r.w.s. 143(3A) and 143(3B) of the I.T. Act without pointing out as to how the order is erroneous and prejudicial to interest of revenue. 8. It is therefore prayed that the above proposed proceedings may please be revoked as learned members of the tribunal may deem it proper. 9. The appellant craves leave to add to, alter, delete or modify any of the grounds of appeal either before or in the course of hearing of this appeal.” 3. The facts necessary for disposal of the appeal are stated in brief. The assessee is an individual and has filed his return of income on 24.01.2019 for assessment year 2018-19, declaring total income at Rs.12,00,710/-. The case of the assessee was selected for complete Scrutiny under E-assessment Scheme, 2019 and assessment was completed u/s 143(3) r.w.s. 143(3A) & 143(3B) of the Act on 21.01.2021, without making any addition. 4. Later on, Learned Principal Commissioner of Income Tax-1, Surat (in short “ld. PCIT”], exercised his jurisdiction under section 263 of the Act. On verification of the records, it was observed by ld PCIT that the assessee has sold a piece of land and has claimed deduction u/s 54B of the Act and has computed capital gains as under: Page | 3 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel Description property sold Sales consideration (Rs) Date of sale Date of purchase Purchase in (Rs) Block No.253 and 253 New Block No.252 Majoe, Puna, Dist. Surat 12,38,72,000/2=6,19,36,0 00/- (assessee’s share in the property) 14.03.20 18 Block No.253 dt. 10.02.06 Block 252 dt.22.01.20 08 Purchase of Blocks No.253 cost index = 2,79,180/117*272=6,49,057/ Purchase of Block No.252, Moje, Puna, Dist. Cost index=2,46,825/128*272=5,20, 437/- Sale price Indexed cost Transfer expense Indexed cost of improveme nt Exempt u/s54B of the Act 6,19,36,000 /- 11,69,494/- (649057+520437) 0 0 6,07,66,506/- 5. The ld PCIT noted that the following conditions should be satisfied to claim the benefit of section 54B of the Act:  The benefit of Section 54B is available only to an individual or a HUF  The asset transferred should be an agricultural land. The land may be long term capital asset or short- term capital asset. The agricultural land should be used by the individual or his parents for agricultural purpose at least for a period of two years immediately preceding the date of transfer. In case of HUF the land should be used by any member of HUF. Within a period of two years from the date of old land the taxpayers should acquire another agricultural land. As per the above conditions, the land transferred should be agricultural land which should be used for agricultural purpose at least for a period of two years immediately preceding the date of transfer. However, on perusal of returns of income filed by the assessee for immediately two preceding assessment years as well as ITR for the year under consideration, it was noticed by ld PCIT that the assessee had not offered any agricultural income which shows that no agricultural activity was being carried out by the assessee on the impugned land. The details of agriculture income offered by the assessee are as under: AY Agriculture income 16-17 NIL Page | 4 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel 17-18 NIL 18-19 NIL 6. The ld PCIT noted that assessee in his reply dated 23.09.2020, during the course of proceedings u/s 143(3) of the Act has submitted that the assessee has used this land for agricultural purposes for more than two years and has now made investment in purchase of new agriculture land before the due date of filing of the return of income, hence the assessee is eligible to claim deduction u/s 54B of the Act. 7. The ld PCIT, therefore noted that the assessee has stated categorically in his submission that he had used the transferred land for agricultural purposes for more than two years as and has purchased new agriculture land before due date of filing of the return of income, hence the assessee is eligible to claimed deduction u/s 54B of the Act. However, the assessee has not submitted any supporting documents/evidences during the course of assessment proceedings, to substantiate the claim that land was being used for agriculture purpose within the stipulated period as required u/s 54B of the Act. Moreover, the ITR filed by the assessee shows that the assessee has not offered any income from agriculture activities. During the course of assessment proceedings, the assessee could not produce any evidence which could substantiate his claim of deduction u/s 54B of the Act and records available in the form of Income Tax Return (ITR) of the assessee clearly contradict the claim made by the assessee for deduction u/s 54B of the Act. In view of above, the assessee’s claim for deduction/s 54B of the Act was erroneously allowed during the course of assessment proceedings. Accordingly, capital gains on this sale proceeds were required to be computed as under: Particulars Sales price (Rs) Indexed cost (Rs) Transfer expenses Indexed cost of improvement Exempt Capital gain (Rs) Block No.253 and 252 61,36,000/- 11,69,494/- 0 0 0 6,07,66,506/- Page | 5 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel New Block NO.252 Moje Puna Dist. Surat (649057+520437) 8. Therefore, ld PCIT noted that Assessing Officer was required to make inquiry and verification on this issue in the light of provision of section 54(2) of the Act which he has failed to do so and has not disallowed the deduction claimed u/s 54 of the Act which shows lack of application of mind by the Assessing Officer. The Assessing Officer has to follow the provisions laid down in the Act. The principle of strict interpretation of taxing statues was best enunciated by Rowlatt J. in his classic statement in Cape Brandy Syndicate v. I.R.C. (1 KB 64, 71): “In a taxing statue one has to look merely what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax.” 9. Considering the above facts, ld PCIT issued a show cause notice bearing DIN No.ITBA/COM/F./17/2022-23/1050165949(1) dated 27.02.2023 and was duly served upon the assessee. In compliance with the above show cause notice, the assessee has failed to furnish any reply. Therefore, ld PCIT noted that the Assessing Officer was required to make inquiry and verification on the above mentioned issue and make addition, which he has failed to do so. The Assessing Officer failed to take note that the assesse had failed to furnish any cogent supporting documents to substantiate his claim he had used the transferred land for agricultural purposes for more than two years.In view of the above, the ld PCIT held that while finalizing the assessment proceedings, the Assessing Officer required to make inquiry/verification and make addition on the issues of deduction u/s 54B of the Act, which he failed to do so, therefore, the assessment order passed u/s 143(3) r.w.s. 143(3A) & 143(3B) of the Act dated 21.01.2021 was treated by ld PCIT to be erroneous in so far as it is prejudicial to the interest Page | 6 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel of Revenue, and ld PCIT directed the assessing officer to pass fresh assessment order. 10. Aggrieved by the order of Ld. PCIT, the assessee is in appeal before us. 11. Shri P.M. Jagasheth, Learned Counsel for the assessee, begins by pointing out that during the assessment stage, the assessee submitted enough documents and evidence before Assessing Officer in response to various notices issued by Assessing Officer u/s 142(1) of the Act. The Assessing Officer issued notices u/s 142(1) of the Act, on three occasions, vide notices dated 03.02.2020, 28.02.2020 and 08.09.2020 respectively. In response to these notices, assessee filed his submission along with documentary evidences, on 23.09.2020, which are placed at pages 22-25 of assessee`s paper book. The assessee also submitted before Assessing Officer the proof of agricultural land at Block Nos. 252 and 253, Moje Puna, Taluka Puna, Dist. Surat along with Form-7/12 extract. The assessee also submitted the purchase deed of agricultural land for Block No.98B, 127 and 128 and claimed exemption u/s 54B along with Extract 7/12. By submitting these documents and evidences during assessment stage, the assessee has discharged his onus to prove that assessee has sold agricultural land, which was used by the family members of the assessee for agricultural purposes for more than two years. 12. Shri Jagasheth, further pleaded that in order to claim deduction u/s 54B of the Act, it is not necessary that assessee should himself show the agricultural income in his return of income. The subject land was inherited by the members of the past generations of one's family, that is, an ancestor, therefore any member of the family may show agricultural income, in his/her return of income. The Ld. PCIT has exercised his jurisdictional power mainly Page | 7 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel that assessee has not shown agricultural income in his return of income. In this connection, Ld. Counsel for the assessee submitted that agricultural land owned by the family members and the agricultural income was shown by the family members of assessee in Pareshbhai P. Patel (HUF). The Ld. Counsel for the assessee, argued that main requirement and emphasis to claim exemption under section 54B of the Act, is that the agricultural land should be used exclusively for agricultural purposes. The assessee has stated that agricultural income was shown by one of the family entities, that is, Pareshbhai P. Patel (HUF), and assessee has produced Form No.7/12 and Form No.6, relating to agricultural activities, and in these revenue records (Form No.7/12 and Form No.6), it is clearly mentioned that land is ‘Kheti layak’ , that is, used for agricultural purposes. Hence, ld Counsel contended that assessee`s land was agricultural land and it was being used for agricultural purposes, since last many years prior to its sale, hence assessee is entitled to claim exemption/deduction u/s 54B of the Act. For this, ld Counsel relied on many judgements/case laws, which is submitted by the ld Counsel by way of legal compilation, which we have gone through. Therefore, ld Counsel, submitted that jurisdictional powers exercised by the ld PCIT, u/s 263 of the Act, are entirely on wrong footing, hence order passed by the ld PCIT may be quashed, as the order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of revenue. 13. On the other hand, Shri Ravi Kant Gupta, Learned CIT-DR for the Revenue submitted that there is no proof that the agricultural activities were carried out by assessee, as the assessee himself has not shown any agricultural income in his return of income. The agricultural income shown by the other members of the assessee, like Hindu undivided family and other members of the family, should not be considered for the purpose of deduction under section 54B of the Act, therefore ld DR contended that the exemption Page | 8 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel and deduction provisions should be construed and interpreted strictly and if there is a small deviation then in that circumstances the exemption and deduction should not be allowed to the assessee. Therefore, ld DR vehemently argued that since the assessee has himself not shown the agricultural income in his return of income therefore, assessee would not be entitled to claim deduction under section 54B of the Income Tax Act in relation to agricultural land sold by him. For that ld DR relied on the following judgments:  Smt. Asha George vs. ITO [2013] 30 taxmann.com 334 (Kerala)/[2013] 214 Taxman 236 (Kerala)/[2013] 351 ITR 123 (Kerala)[16.01.2013]  ITO vs. Tome Hiltor Silvester De Oliveira [2014] 49 taxmann.com 582 (Panaji – Trib.)/[2015] 152 ITD 877 (Panaji p0 Trib.) [14.08.2014]  BSES Rajdhani Power Ltd. vs. PCIT [2017] 88 taxmann.com 25 (Del)/[2017] 399 ITR 228 (Del)[08-11-2017]  BSES Rajdhani Power Ltd. vs. PCIT [2023] 152 taxmann.com 139 (SC)/[2023] 293 Taxman 605 (SC)/[2023] 454 ITR 436 (SC) [02-05- 2023]  Paras Chinubhai Jani vs. PCIT [2019] 107 taxmann.com 217 (Ahd - Trib.)/[2019] 177 ITD 591 (Ahd – Trib.) [26-04-2019]  Rajiv Dass vs. DCIT [2019] 103 taxmann.com 192 (Del)/[2019] 264 Taxman 40 (Del)/[2019] 414 ITR 37 (Del)[18.12.2018]  Chomansinigh M. Deora vs. PCIT [2023] 155 taxmann.com 291 (Mum-Trib.)/[2023] 203 ITD 240 (Mum-Trib.[07-09-2023]  Smt. Madhu Devi Jain vs. ITO [2023] 156 taxmann.com 349 (Hyderabad – Trib.)/[2023] 203 ITD 713 (Hyd-Trib.)[11-10-2-23]. Page | 9 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel 14. The Ld. CIT-DR for the Revenue also submitted that Income Tax Return of HUF, wherein the agricultural income has been shown by the assessee, was not before the Assessing Officer. The Ld. CIT-DR for the Revenue further pointed out that Assessing Officer has not conducted enquiry in relation to the main issue raised by the Ld.PCIT. The Ld. CIT-DR also pointed out that just to collect the information from the assessee and put in the assessment folder does not mean to conduct sufficient enquiry. Therefore, ld CIT-DR argued that order passed by the Assessing Officer is erroneous and prejudicial to the interest of Revenue, on account of non application of mind, hence ld PCIT has rightly exercised his jurisdiction u/s 263 of the Act, hence order passed by him u/s 263 of the Act may be upheld. 15. We have heard both the parties and perused the materials available on record. We note that assessee submitted before us following documents and evidences, which were also submitted before the assessing officer during the assessment proceedings, viz:(i) ITR along with computation of income for AY 2018-19 (page 1-4 of paper book) (ii) Notice u/s 143(2) dated 28.09.2019 ( vide page 5-9 of paper book) (iii) Notice u/s 142(1) dated 03.02.2020 (pages 10-12 of paper book) (iv) Notice u/s 142(1) dated 20.02.2020 (pages 13-16 of paper book) (v) Notice u/s 142(1) dated 08.09.2020 (pages 17-19 of paper book) (vi) Reply filed by assessee on 23.09.2020 in respect of notices u/s 142(1) of the Act (pages 20-25 of paper book); (vii) Sale deed of agriculture land block No.252-253, more Puna, Tal. Puna, Dist. Surat and Form 7/12 (pages 26-55 of paper book) (viii) Purchase deed of agriculture land for block NO.98B, 127-128 for claiming deduction u/s 54B with Form 7/12 (pages 56- 159 of paper book); and (ix) ITR of Pareshbhai P Patel (HUF) for AYs 17- 18 & 18-19 (page 163-166 of paper book). These documents and evidences were before the assessing officer except ITR of Pareshbhai P Patel (HUF). We have gone through the above factual documents and evidences and noted Page | 10 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel that after going through these documents and evidences, the Assessing Officer took a plausible view to allow the exemption claimed by the assessee under section 54B of the Act. 16. It is an undisputed fact that assessee’s case was selected for complete scrutiny assessment for examination of following issues viz. (i) investment in immovable property (ii) capital gain on sale of property and (iii) capital gain deduction claimed u/s 54B of the Act. In order to examine these three items, the Assessing Office has issued three notices to the assessee u/s 142(1) of the Act for calling details. In response to these notices, the assessee had submitted detailed reply stating that, assessee’s land was using for agricultural purposes by the family members. The assessee submitted before Assessing Officer the Form No.7/12 and Form No.6 and other evidences which show that land was used for agricultural purposes. The assessee also submitted registered document of sale deed wherein it was mentioned that assessee has grown sugarcane on the land. Thus, the assessee has proved that land was using by the assessee for agricultural purposes prior to its sale for many years. 17. The main allegation of Ld. PCIT was that assessee has himself not shown in his return of income, the agricultural income earned by him, therefore, assessee is not entitled to claim deduction / exemption u/s 54B of the Act. In this regard, the assessee submitted that land was inherited by the members of past generation of the assessee’s family and one of the members of family, namely, Shri Pareshbhai P Patel (HUF) was showing agricultural income. So instead of showing agricultural income by all the family members, one of the family members was showing agricultural income, so it is a sufficient compliance on the part of assessee to claim such deduction u/s 54B of the Act. Page | 11 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel 18. In addition to this, the Ld. Counsel submitted that only the condition to be fulfilled to claim the deduction u/s 54B is that “land was being used” by the assessee for agricultural purposes and it is not necessary that assessee has to show agricultural income in his return of income. Therefore, at this juncture, we are of the view that it is useful to quote the provisions of Section 54B of the Act, which reads as under: “54B. Capital gain on transfer of land used for agricultural purposes not to be charged in certain cases. (1) Subject to the provisions of sub-section(2), where the capital gain arises from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee, being an individual or his parent or a Hindu Undivided Family for agricultural purposes [hereinafter referred to as the original asset], and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say... ...” From the above Section of 54B(1) of the Act, it is vivid that land should be used for two previous years by the assessee, being an individual or his parent or HUF, for agricultural purposes. Here the assessee has fulfilled this condition, as the land was used by the assessee for two preceding previous years for agricultural purposes, and it is not the requirement of Section 54B(1) of the Act, that assessee has to show agricultural income in his return of income. Therefore, the main allegation of the ld PCIT that “in order to claim exemption/deduction under section 54B of the Act, the assessee should show agricultural income in the return of income” , is not acceptable, and the same is hereby rejected. 19. Considering the above facts, the present order of Assessing Officer passed u/s 143(3) dated 21.01.2021 of the Act cannot be termed as erroneous since enquiry was, in fact, carried out by him on the issue on which the ld PCIT has found fault with and has taken a plausible view. We note that the Page | 12 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel Assessing Officer has made enquiry during the assessment proceedings about deduction u/s 54B of the Act, and after being satisfied himself, the Assessing Officer did not make addition. Thus, we note that the Assessing Officer enquired during assessment proceedings and the assessee had filed details before him. So we find that the Assessing Officer’s action cannot be termed “erroneous”. Since not only enquiry was carried out by the Assessing Officer on the issue under consideration and based on the evidence gathered he has taken a plausible view, which at any rate cannot be called as an un- sustainable view. Let us take the guidance of judicial precedents laid down by the Hon’ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the Assessing Officer can be held to be erroneous order, that is (i) if the Assessing Officer’s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii) Assessing Officer’s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the Assessing Officer has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the Assessing Officer can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence Page | 13 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the Ld.PCIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue “unless the view taken by the Assessing Officer is unsustainable in law”. Taking into account, the assessee`s facts, as narrated above, order passed by the assessing officer is neither erroneous nor prejudicial to the interest of revenue. 20. We note that Co-ordinate Bench of this Tribunal in the case of Shri Sharadbhai Popatbhai Kakadia vs. PCIT in ITA No.29/SRT/2021, order dated 27.04.2022, on the very identical issue, under section 263 of the Act, held as follows: 12. Now adverting to the facts of the present case, there is no dispute that there is no reference about various enquiries or investigations carried out by Assessing Officer while passing the assessment order on 22/12/2017. Before us, the learned AR of the assessee vehemently submitted that during assessment, the Assessing officer made detailed enquiries and accepted the claim of assessee on exemption under Section 54B as well as short term capital gain of Rs.7429/-.We find that during the assessment proceedings, the Assessing Officer issued various notices for seeking information and evidence with regard to the claim of exemption under Section 54B as evident from the show cause notice dated 10/11/2017 and 13/11/2017 and 29/11/2017. The assessee furnished his reply and also filed evidence that agriculture land sold by the assessee was used for agriculture activities as evident from extract of 7/12. Thus, the issue was examined by Assessing Officer and on his satisfaction, no addition was made. So far as other issue regarding sale and purchase of other properties i.e. flat in Life Style building, the Assessing Officer vide his notice dated 13/11/2017 required necessary details. 13. Since, the assessing officer has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. Similar view has been taken by Hon'ble Jurisdictional High Court in CIT Vs Nirma Chemical Works Ltd ((2009) 309 ITR 67). 14. After considering the aforesaid factual and legal discussion, we are of the view that the assessing office has taken a reasonable and plausible view, which cannot be branded as erroneous. Thus the twin conditions as enumerated in section 263 Page | 14 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel if not fulfilled in the present case, thus, the order passed by ld PCIT is not sustainable and the same is set-aside. In the result, the grounds of appeal is allowed.” 21. We note that the Assessing Officer has passed the assessment order after calling for details on the issue and after considering the reply and documents and after verification of the same and after due application of mind passed the assessment order, so it cannot be termed as erroneous and prejudicial to the interest of the revenue. So, the Ld. PCIT’s finding fault, with the order of the Assessing Officer is erroneous as well as prejudicial to the interest of revenue, on account of lack of inquiry, has to fail. The Assessing Officer made thorough enquiry by issuing various notices u/s 142(1) of the Act and assessee submitted detailed reply before the Assessing Officer. Besides, order passed by the Assessing Officer is sustainable in law. The judgments/case law relied on by ld CIT-DR for the Revenue are not applicable to the assessee`s facts. Therefore, based on these facts and circumstances, we quash the order dated 25.03.2023 passed by the ld PCIT u/s 263 of the Act. 22. In the result, appeal of the assessee is allowed. Order is pronounced on 26/03/2023 by placing record on Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत /Surat Ǒदनांक/ Date: 26/03/2023 Dkp Outsourcing Sr.P.S Page | 15 ITA No. 349/SRT/2023 A.Y.18-19 Pareshbhai P Patel Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Senior Private Secretary / Private Secretary /Assistant Registrar, ITAT, Surat