Sh. Rajendra Kumar, Bulandshahr V. ITO, Bulandshahr

ITA 364/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1002 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2009
• Appeal Filed By: Assessee
• Bench Allotted: F
• Next Hearing Date: 26-10-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2009
• Court: TRIBUNAL
• Department Lawyers: NAVNEET SON I
• Keywords: Capital asset; Business income; Capital Gains
• Section: 143(3); 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 364/DEL/2009 ASSESSMENT YEAR : 2005-06 SHRI RAJENDRA KUMAR, S/O SHRI NANAK CHAND, OPP. NAGAR PALIKA, BULANDSHAHAR. PAN: AAYPKI 4657 P VS. ITO, WARD-3, BULANDSHAHAR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.P. GUPTA, ADVOCATE REVENUE BY : SHRI NAVNEET SONI, CIT, DR O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 12 TH DECEMBER, 2008 FOR ASSESSMENT YEAR 2005-06. GROUN DS OF APPEAL READ AS UNDER:- 1. THAT THE CIT, MEERUT ERRED IN LAW AND ON FACTS IN INVOKING PROVISIONS OF SECTION 263 OF THE INCOME-TAX ACT. 2. THAT WITHOUT PREJUDICE TO THE GROUND NO.1, THE LD. CIT, MEERUT ERRED IN LAW AND ON FACTS IN MAKING HIS OBSE RVATIONS FOR TREATING THE GAIN ON SALE OF LAND AS BUSINESS I NCOME AS AGAINST LONG-TERM CAPITAL GAIN SHOWN AND ASSESSED B Y THE LD. ASSESSING OFFICER. 3. THAT THE LD. CIT ALSO ERRED ON FACTS AND IN LAW IN MAKING HIS OBSERVATIONS IN RESPECT OF APPELLANTS LAND HOL DINGS AND ITS ITA NO.364/DEL/2009 2 SALE THROUGH PLOTTING. 4. THAT IN VIEW OF THE LEGAL AND FACTUAL POSITION OF THE CASE THE ORDER PASSED BY THE LD. CIT, MEERUT U/S 263 OF THE INCOME TAX ACT DESERVES TO BE VACATED AND THE ASSES SMENT ORDER FRAMED BY THE LD. A.O. BE RESTORED. 5. THAT WITHOUT PREJUDICE TO GROUND NO.1,2, 3 AND 4, THE OBSERVATIONS AND DIRECTIONS OF THE LEARNED CIT TO T HE LEARNED A.O. FOR TREATING THE GAIN ON SALE OF LAND AS ALLEG ED BUSINESS INCOME AND COMPUTING IT ACCORDING TO THE PROVISIONS OF THE INCOME TAX ACT WERE NOT SPECIFIC. 2. THE ASSESSMENT IN THE PRESENT CASE WAS FRAMED VI DE ORDER DATED 29 TH JUNE, 2007 PASSED U/S 143(3) OF INCOME-TAX ACT, 196 1 (THE ACT) IN WHICH THE INCOME OF THE ASSESSEE WAS ASSESSED AT RS.3,07,194/ - AS AGAINST RETURNED INCOME OF RS.2,67,140/- PLUS AGRICULTURAL INCOME OF RS.5,50,000/-. THE PROCEEDINGS U/S 263 WERE INITIATED ON ACCOUNT OF AG RICULTURAL INCOME AS WELL AS ON ACCOUNT OF SALE OF LAND FOR WHICH THE ASSESSEE H AD SHOWN INCOME UNDER THE HEAD CAPITAL GAINS. THOUGH THE PROCEEDINGS U/S 2 63 WERE INITIATED FOR AGRICULTURAL INCOME ALSO, BUT NO ADVERSE INFERENCE HAS BEEN DRAWN IN RESPECT OF AGRICULTURAL INCOME AND THE ORDER OF CIT AFFECT ONL Y THE ASSESSABILITY OF LAND SALE UNDER THE HEAD CAPITAL GAINS OR BUSINESS INCOME . IT IS THE CASE OF CIT THAT THE AGRICULTURAL LAND WAS SOLD BY THE ASSESSEE WITH AN INTENTION TO CARRY ON BUSINESS ACTIVITY BY DIVIDING THE SAME IN PLOTS, AN D, HENCE, IT WAS AN INCOME IN THE NATURE OF BUSINESS WHICH WAS ERRONEOUSLY ASSESS ED BY THE ASSESSING OFFICER UNDER THE HEAD CAPITAL GAINS. ACCORDING TO THE C IT, THE ISSUE WAS NOT PROPERLY EXAMINED BY THE ASSESSING OFFICER AND THE SAID INCO ME WAS FALLING UNDER THE HEAD BUSINESS INCOME WHICH HAS WRONGLY BEEN ASSES SED UNDER THE HEAD CAPITAL GAIN. 3. IN RESPONSE TO THE SHOW CAUSE NOTICE WITH REGARD TO PROCEEDINGS U/S 263, IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE WAS HAVING 65 KACHHA BIGHAS OF AGRICULTURAL LAND WHICH WAS ENTIRELY SELF CULTIVATED. IN ADDITION TO AGRICULTURAL INCOME THE ASSESSEE HAS RENTAL INCOME AND SOME INCOME FROM ITA NO.364/DEL/2009 3 CAPITAL GAINS. DUE TO URBANIZATION, AGRICULTURAL O PERATIONS HAD BECOME UNVIABLE, THEREFORE, THE ASSESSEE HAD SOLD SOME SMALL PORTION OF HIS AGRICULTURAL HOLDING. THE AGRICULTURAL HOLDINGS COULD NOT BE TERMED AS BU SINESS ESTABLISHMENT BECAUSE LAND WAS BEING USED FOR AGRICULTURAL PURPOS ES. IT WAS SUBMITTED THAT THERE WAS NO REGULARITY, CONTINUITY OR PROFIT MOTIV E IN THE SALE OF LAND MADE BY THE ASSESSEE, THEREFORE, PROFIT ON SALE OF LAND WAS RIG HTLY TAXED BY THE ASSESSING OFFICER AS CAPITAL GAINS. 4. LD. CIT HAS GIVEN TABLE I AND II TO SHOW THE ACQ UISITION OF LAND AS WELL AS SALE OF LAND WHICH HAS ALSO BEEN GIVEN BY LD. AR IN THE SHAPE OF A CHART WHICH IS AS UNDER:- NAME OF VILLAGE DATE OF ACQUISITION AREA OF AGRICULTURAL LAND DATE OF SALE AREA SOLD F.Y. B - B - B A : KHURJA TOWN 19.02.1998 1 - 0 - 10 20.9.0 2 133SQ. YDS 2002-03 17.3.04 100 SQ.YDS 2003-04 19.3.04 200 SQ.YDS 2003-04 B: VILLAGE- MOHAMMAD KARIMPUR URF DHAKAR 23.04.1993 4.5 BIGAS 9.7.03 3.5 BIGAS 2003-04 C: KHURJA TOWN 21.02.1998 3 - 4 - 0 6.12.04 1 20 SQ.YDS 2004-05 D: KHURJA TOWN 14.12.2000 1 - 3 - 0 27.1.05 150 SQ.YDS 2004-05 DETAILS REGARDING PURCHASE OF LAND IN THE PRECEDING THREE FINANCIAL YEARS AND THE YEAR UNDER APPEAL FINANCIAL YEAR PURCHASE OF LAND F.Y. 2001-02 NIL F.Y. 2002-03 NIL F.Y. 2003-04 NIL F.Y. 2004-05 6.12.04 0.008 HEC. AGR. LAND 27.1.05 0.204 HEC. AGR. LAND ITA NO.364/DEL/2009 4 5. ACCORDING TO LD. CIT, AGRICULTURAL HOLDINGS OF L ESS THAN 2 HECTARES (8 BIGHAS) ARE UNECONOMIC AND HOLDINGS OF LESS THAN 1 HECTARE (4 BIGHAS) ARE UNVIABLE. LD. CIT FURTHER OBSERVED THAT IN THE YEA R UNDER CONSIDERATION THE ASSESSEE HAD SOLD 120 SQ. YDS OF LAND OUT OF THREE BIGAS WHICH WAS ACQUIRED ON 21 ST FEBRUARY, 1998. ANOTHER PLOT OF 150 SQ. YARD WAS SOLD OUT OF ONE AND ODD BIGHAS WHICH WAS ACQUIRED ON 14 TH DECEMBER, 2005. THESE PLOTS WERE SITUATED AT KHURJA, A DEVELOPED MUNICIPAL AREA, IN BULANDSHA HAR DISTRICT. AT THE VERY TIME OF ACQUISITION, THE ASSESSEE WOULD HAVE KNOWN THAT THESE PLOTS OF LAND ARE AT A CONSIDERABLE DISTANCE FROM HIS MAIN HOLDINGS AT NAY A GAON, THEREFORE, COULD NOT BE PROFITABLY USED FOR AGRICULTURAL OPERATION. IT WAS FURTHER OBSERVED BY LD.CIT THAT AGRICULTURAL LANDS ACQUIRED BY ASSESSEE DURING THE ACCOUNTING PERIOD WAS STILL SMALLER MEASURING 0.204 HECTARE AND 0.008 HEC TARE AND BY NO STRETCH OF IMAGINATION THESE LANDS, WHICH ARE LOCATED FAR AWAY FROM ASSESSEES HOLDINGS, COULD BE USED FOR AGRICULTURAL ACTIVITIES. THUS, T HE INTENTION OF THE ASSESSEE BEHIND THE PURCHASE AND SALE OF PLOT WAS PRIMARILY TO EARN PROFIT FROM LAND TRANSACTION AND NOT TO CARRY ON AGRICULTURAL OPERAT IONS. REFERRING TO TABLE II, THE LD. CIT OBSERVED THAT THREE PIECES OF LANDS WERE SO LD IN PRECEDING YEAR AND TWO PIECES OF LAND IN CURRENT YEAR. THUS, THE TRANSACT ION OF LAND WAS FREQUENT. BESIDES THAT, THE LD.CIT OBSERVED THAT THE ASSESSEE HAD ADVANCED MONEY FOR A PLOT IN GREATER NOIDA AND, THUS, HE ADMITTED TO HAV E SOLD ANOTHER PIECE OF LAND, THE DEAL OF WHICH COULD NOT BE FINALIZED. THE LAND HELD BY THE ASSESSEE WAS NOT SOLD AS SUCH, IT WAS SOLD AFTER PLOTTING AND, THERE FORE, EARNING OF INCOME FROM SALE OF PLOT WAS A BUSINESS ACTIVITY. APPLYING THE TEST OF INTENTION, FREQUENCY AND PROFIT MOTIVE, THE LD. CIT HAS HELD THAT IT WAS AN INCOME FROM BUSINESS. THEREFORE, THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE ASSESSING OFFICER HAS ASSESSED T HE RECEIPT OF THE ASSESSEE FROM SALE OF LAND AS CAPITAL GAINS. HE HAS DIREC TED THE ASSESSING OFFICER TO MODIFY HIS ASSESSMENT ORDER TO GIVE EFFECT TO SUCH FINDINGS. ON THE OTHER GROUND FOR WHICH THE POWER U/S 263 WAS INVOKED, WHICH WAS REGARDING INCOME EARNED BY THE ASSESSEE FROM SALE OF MANGO TREES, THE LD. CIT HAS TAKEN NO ACTION U/S 263. THEREFORE, THE ONLY ISSUE WHICH WAS DECIDED BY LD. CIT WAS REGARDING ITA NO.364/DEL/2009 5 ASSESSABILITY OR OTHERWISE OF LAND RECEIVED BY THE ASSESSEE FROM SALE OF LAND AS BUSINESS INCOME OR INCOME UNDER THE HEAD CAPITA L GAINS. 6. IT WAS PLEADED BY LD. AR THAT ACCORDING TO THE C HART SUBMITTED THERE IS NO FREQUENCY OF SALE AND PURCHASE AS ALLEGED BY THE LD . CIT. IT WAS SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION TWO PLOTS WERE SOLD WHICH ARE STATED AT POINT C AND D. THE FIRST SALE WAS MADE ON 6 TH DECEMBER, 2004 WHICH LAND WAS PURCHASED ON 21 ST FEBRUARY, 1998 AND THE OTHER SALE WAS ON 27 TH JANUARY, 2005 WHICH WAS PURCHASED ON 14 TH DECEMBER, 2000. EARLIER TO THIS ALSO SOME LAND WAS SOLD AND WHICH WAS PURCHASED LONG BACK IN 1998 AND 1993. IT WAS CONTENDED THAT IN THE LAST THREE FINANCIAL YEARS NO LAND WHATSOEVER WAS PURCHASED BY THE ASSESSEE AND DURING THE YEAR UNDER CONSIDERATION ONLY SMALL PIECES OF AGRICULTURAL LAND WERE PURCHASED WHICH HA D NO RELATION WHATSOEVER WITH THE LAND SOLD BY THE ASSESSEE. IT WAS SUBMITTED TH AT THE OBSERVATION OF CIT REGARDING INTENTION OF THE ASSESSEE TO PURCHASE LAN D IN GREATER NOIDA IS NOT A CORRECT FACT. HE CONTENDED THAT NO MATERIAL WHATSO EVER HAS BEEN BROUGHT BY CIT FOR OBSERVING SO. AS AGAINST THAT, THE ASSESSEE IS SUBMITTING AN AFFIDAVIT, ACCORDING TO WHICH NO LAND WHATSOEVER WAS PURCHASED IN GREATER NOIDA AS IS ALLEGED BY CIT. HE, IN THIS REGARD, REFERRED TO TH E AFFIDAVIT GIVEN BY SHRI RAJENDRA KUMAR (ASSESSEE) TO STATE THAT THE ASSESSEE DID NOT CARRY OUT ANY ALLEGED PLOTTING AS OBSERVED BY CIT IN HIS ORDER AND THE AS SESSEE DID NOT HAVE ANY KNOWLEDGE OF PURCHASE OF ANOTHER PIECE OF LAND THE DEAL OF WHICH WAS NOT MATERIALIZED. THUS, IT WAS PLEADED BY THE LD. AR T HAT THE OBSERVATIONS OF CIT TO THIS EXTENT IS INCORRECT. HE RELIED UPON THE DECIS ION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SOHAN KHAN (2008) 304 ITR 194 (RAJ) WHEREIN THE ASSESSEE HAD PURCHASED LARGE EXTENT OF LAND IN 1970 . THE LAND WAS UNDER THE CLOUT OF CEILING LAWS AND AFTER GETTING THE CLEARAN CE THE ASSESSEE PREPARED A SITE PLAN SHOWING THE LAND TO BE DIVIDED IN TWO DIFFEREN T PLOTS AND THE LAND WAS ACCORDINGLY SOLD. THE ASSESSING OFFICER WAS OF THE VIEW THAT PROFIT FROM SALE WERE NOT TO BE TAXED AS CAPITAL GAIN, BUT THE TRANS ACTION WAS IN THE NATURE OF TRADE ON THE GROUND THAT LAND SURROUNDING THE ORIGI NAL LAND WAS OWNED BY THE ITA NO.364/DEL/2009 6 NEAR RELATIVES OF THE ASSESSEE AND HIS FAMILY MEMBE RS. THE PROPERTY AT NO STAGE WAS USED FOR PERSONAL PURPOSES. THE INTENTIO N OF THE ASSESSEE WAS ONLY TO GAIN PROFIT. THE CIT AND THE TRIBUNAL HELD THAT SALE PROCEEDS TO BE CONSIDERED AS CAPITAL GAIN. THE HONBLE RAJASTHAN HIGH COURT DISMISSED THE APPEAL FILED BY THE DEPARTMENT BY OBSERVING THAT THE MERE FACT THAT IT WAS A SERIES OF TRANSACTIONS OF SALE ONLY BY SELLING PART OF THE LA ND, PURCHASE IN ONE GO, OR PURCHASED ONCE UPON A TIME, PIECEMEAL, WOULD NOT RE NDER THE SALE AN ADVENTURE IN THE NATURE OF TRADE. THERE WAS NO MATERIAL TO SHOW THAT THE LAND WAS PURCHASED WITH THE INTENTION TO SELL IT AT A PROFIT OR REQUISITE INTENTION TO BRING THE SAME WITHIN THE PARAMETERS OF STOCK IN TRADE. IT W AS ALSO NOT SHOWN THAT THE ASSESSEE WAS A REGULAR DEALER IN REAL ESTATE. THE TRANSACTION WAS OF A CAPITAL ASSET ONLY AND NOT A TRANSACTION OF ANY STOCK IN TR ADE. THEREFORE, IT WAS HELD THAT SALE PROCEEDS WERE LIABLE TO BE TAXED AS CAPITAL GA IN. RELYING ON THE SAID DECISION, IT WAS PLEADED BY LD. AR THAT SEEING FROM THE FACTS OF THE CASE, THE CIT IS WRONG IN HOLDING THAT THE TRANSACTION WAS IN TH E NATURE OF BUSINESS. IT WAS RIGHTLY TAXED BY THE ASSESSING OFFICER AS CAPITAL G AIN IN THE ORIGINAL ASSESSMENT ORDER AND, THUS, HE CONTENDED THAT THE POWER U/S 26 3 WAS WRONGLY EXERCISED BY THE CIT AND HIS ORDER SHOULD BE QUASHED. 7. ON THE OTHER HAND, RELYING ON THE ORDER OF THE C IT, IT WAS PLEADED BY LD. DR THAT THE CIT HAS RIGHTLY EXERCISED POWER U/S 26 3. LD. DR FURTHER RELIED ON THE FOLLOWING DECISIONS:- 1) JAGDISH KUMAR GULATI VS. CIT 269 ITR 71 (ALL) TO CONTEND THAT WHILE FRAMING THE ASSESSMENT U/S 143(3), IT IS EXPECTED F ROM THE ASSESSING OFFICER THAT HE WILL MAKE A DETAILED INQUIRY TO FIN D OUT CORRECT INCOME OF THE ASSESSEE AND NOT TO FACTS PLACED BY THE ASSESSEE O N THEIR FACE VALUE. WHERE THE ASSESSING OFFICER COMPLETE THE ASSESSMENT PROCEEDINGS U/S 143(3) AND ADMITTED THAT HE COULD NOT MAKE PROPER I NQUIRIES AS ASSESSMENT WAS BECOMING TIME BARRED, THERE WAS VALI D ASSUMPTION OF JURISDICTION U/S 263 BY COMMISSIONER AND THE TRIBUN AL, IN SUCH A SITUATION, ITA NO.364/DEL/2009 7 DID NOT COMMIT ANY ERROR IN LAW IN CONFIRMING THE O RDER OF CIT (A) FOR SETTING ASIDE THE ASSESSMENT AND DIRECTING THE ASSE SSING OFFICER TO MAKE AN ORDER OF ASSESSMENT. 2) GEE VEE ENTERPRISES VS. ADDL. CIT 99 ITR 375 (DE L) TO CONTEND THAT THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON T HE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE, ITO SHOULD HAVE MADE FU RTHER INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY THE ASSESSEE IN HI S RETURN AND IT WAS OBSERVED THAT REASON IS OBVIOUS. THE POSITION AND FUNCTIONS OF THE ITO ARE VERY DIFFERENT FROM THAT OF CIVIL COURT. 8. THUS, IT WAS PLEADED BY LD. DR THAT THE LD. CIT HAS RIGHTLY EXERCISED HIS POWERS U/S 263 AND HIS ORDER SHOULD BE UPHELD. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE POWERS U/S 263 HAS BEEN EXERCISED BY THE CIT ON THE GROUND THAT FREQUENCY AND INTENTION OF THE A SSESSEE WITH REGARD TO SALE AND PURCHASE OF AGRICULTURAL LAND SHOULD BE CONSIDE RED TO BE A BUSINESS ACTIVITY. THEREFORE, WHATEVER WAS ASSESSED BY THE ASSESSING O FFICER AS CAPITAL GAIN SHOULD HAVE BEEN ASSESSED AS INCOME FROM BUSINESS. ADMITTEDLY, THE ASSESSEE IS NOT CARRYING ON ANY BUSINESS ACTIVITY, BUT HE IS EARNING INCOME FROM AGRICULTURAL SOURCES. THE ASSESSEE WAS HAVING CERTAIN AGRICULTU RAL LAND WHICH WAS NOT VIABLE FOR CARRYING OUT AGRICULTURAL ACTIVITIES AND HAD CO ME IN THE MUNICIPAL AREA, THEREFORE, THE ASSESSEE MIGHT HAVE SOLD THE SAME, B UT THAT DOES NOT MEAN THAT IT BECOME THE BUSINESS ACTIVITY OF THE ASSESSEE. FOR CONSIDERING THAT WHETHER THE ACTIVITY OF THE ASSESSEE IS A BUSINESS ACTIVITY, TH E FACTS HAVE TO BE KEPT IN MIND. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS SOLD TWO PIECES OF LAND STATED AS (C) AND (D) IN THE TABLE INSERTED IN PARA 4 OF THIS ORDER. THESE ARE SMALL PIECES OF LAND MEASURING 120 SQ. YARD AND 150 SQ. YD. ONE OF THESE, MEASURING 120 SQ. YARD WAS PURCHASED BY THE ASSESSEE ON 21 ST FEBRUARY, 1998 AND IT WAS SOLD ON 6 TH DECEMBER, 2004. SIMILARLY, PLOT OF 150 SQ. YARD W AS PURCHASED BY THE ASSESSEE ON 14 TH DECEMBER, 2000 AND IT WAS SOLD ON 27 TH JANUARY, 2005. ITA NO.364/DEL/2009 8 THERE IS A HUGE GAP BETWEEN THE PURCHASE AND SALE O F THESE LANDS. BY NO STRETCH OF IMAGINATION THESE SALES CAN BE STATED TO BE BUSINESS ACTIVITY OF THE ASSESSEE. FROM THE TABLE REPRODUCED ABOVE, IT IS S EEN THAT THERE IS NO FREQUENCY IN SALE AND PURCHASE OF LANDS AS HAS BEEN ALLEGED B Y CIT TO MAKE THE TRANSACTIONS OF THE ASSESSEE IN THE NATURE OF BUSIN ESS. SIMILARLY, THERE IS NOTHING ON RECORD TO SHOW THAT WHEN THE ASSESSEE PURCHASED THESE LANDS, THESE WERE PURCHASED WITH A VIEW NOT TO CARRY OUT AGRICULTURAL ACTIVITY, BUT FOR THE PURPOSE OF CARRYING ON OF BUSINESS. KEEPING IN VIEW THE ENTIR ETY OF FACTS, ONE OF THE OPINIONS WHICH COULD HAVE BEEN THAT THESE ARE SALES OF CAPIT AL ASSETS LIABLE FOR CAPITAL GAIN. THIS VIEW COULD REASONABLY BE TAKEN ON THE B ASIS OF FACTS OF THE PRESENT CASE. THEREFORE, THE VIEW TAKEN BY THE ASSESSING O FFICER THAT THESE TRANSACTIONS ARE LIABLE FOR CAPITAL GAIN CANNOT BE SAID TO BE AN IMPOSSIBLE VIEW. ACCORDING TO THE CIT, THESE ARE BUSINESS TRANSACTION OF THE ASSE SSEE. THAT MAY BE ANOTHER VIEW, BUT, WHILE EXERCISING POWER U/S 263, THE COMM ISSIONER CANNOT SUBSTITUTE HIS OPINION ON ASSESSING OFFICER. IF TWO OPINIONS ARE POSSIBLE ON THE SAME FACTS, MERELY THAT CIT WAS HAVING AN OPINION OTHER THAN TH E OPINION OF ASSESSING OFFICER, THE ORDER OF ASSESSING OFFICER CANNOT BECO ME ERRONEOUS AND SUCH PROPOSITION OF LAW IS SUPPORTED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT 243 ITR 83 (SC). THEREFORE, KEEPING IN VIEW THE ENTIRETY OF FACTS OF THE PRESENT CASE AND THE FACTUAL POSITION DISCUSSED ABOVE, WE ARE OF THE OPINION THAT POWER U /S 263 HAS WRONGLY BEEN EXERCISED BY THE CIT AND, THEREFORE, WE QUASH THE O RDER PASSED BY HIM U/S 263. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. . 11. THE ORDER PRONOUNCED IN THE OPEN COURT ON 20.11 .2009. [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 20.11.2009. DK ITA NO.364/DEL/2009 9 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES