Sh. Pawan Kumar, Shahabad V. CIT, Karnal

ITA 435/CHANDI/2012

• Counselvise Citation: 43521514 RSA 2012
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 16-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL VERMA
• Assessee Lawyers: S K MUKHI
• Keywords: Principle of natural justice; Fair market value; Difference of opinion; Corroborative evidences; Valuation report; Assessment record
• Section: 263; 63; 154; 2; 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.435/CHD/2012 (ASSESSMENT YEAR : 2007-08) SH.PAWAN KUMAR, VS. THE C.I.T., PROP. M/S MAHALAKSHMI KARNAL. MODERN RICE MILLS, SHAHBAD. PAN: ABLPK0085D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MUKHI RESPONDENT BY : SHRI SUNIL VERMA, DR DATE OF HEARING : 17.08.2015 DATE OF PRONOUNCEMENT : 19.08.2015 O R D E R PER RANO JAIN, A.M . : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX, KARNAL UNDER SECTION 263 OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT) DATED 20.3.2012 FOR ASSESSMENT YEA R 2007- 08. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED THE RETURN OF INCOME DECLARING INCOME OF RS.84 ,837/- AND 2 LONG TERM CAPITAL LOSS OF RS.1,83,059/- ON 23.7.200 7. THE REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETED BY THE I.T.O., WARD-2, KURUKSHETRA VIDE H IS ORDER DATED 1.6.2009 ACCEPTING THE INCOME SHOWN IN THE RE TURN. ON AN EXAMINATION OF ASSESSMENT RECORD, THE LEARNED COMMISSIONER OF INCOME TAX NOTICED THAT DURING THE YEAR, THE ASSESSEE HAD SOLD HIS RICE MILL ALONGWITH LAND, BUI LDING AND MACHINERY FOR RS.64,50,000/- AND AFTER REDUCING DEP RECIABLE ASSETS VALUING RS.6,46,394/-, NET CONSIDERATION OF LAND WAS SHOWN AT RS.58,03,606/-. THE LEARNED COMMISSIONER OF INCOME TAX FURTHER NOTICED THAT THE AVERAGE RATE OF LAND MEASURING 31.1 KANALS WAS ADOPTED BY THE ASSESSEE A T RS.37,090/- PER KANAL, WHEREAS THE ASSESSEE HAD PUR CHASED THE ABOVE LAND MEASURING 28.2 KANALS ON 4.2.1979 AT A CONSIDERATION OF RS.1,27,050/- INCLUDING STAMP DUTY EXPENSES AND FURTHER PURCHASED LAND MEASURING 2.19 KANALS ON 12.8.1981 FOR CONSIDERATION OF RS.22,500/- INCLUDIN G EXPENSES ON STAMP DUTY WHICH COMES TO RS.10,274/- PER KANAL. IN VIEW OF PURCHASE OF LAND PER KANAL AS ON 12.8.1981 @ RS.10,274/-, THE RATE FOR INDEXATION OF LAND AS ON 1.4.1981 WAS REQUIRED TO BE ADOPTED AT RS.10,274/- PER KANAL AS AGAINST RS.37,090/- PER KANAL TAKEN BY THE ASSESSEE AND ACCEPTED BY THE ASSESSING OFFICER FOR THE PURPOSE O F CALCULATION OF CAPITAL GAIN/LOSS. ON THIS BASIS, T HE LEARNED COMMISSIONER OF INCOME TAX WAS OF THE VIEW THAT THE RE WAS A LONG TERM CAPITAL GAIN OF RS.41,43,959/-, WHICH WAS 3 REQUIRED TO BE ASSESSED BY THE ASSESSING OFFICER AS AGAINST LONG TERM CAPITAL LOSS OF RS.1,83,059/- ACCEPTED WH ILE COMPLETING THE ASSESSMENT PROCEEDINGS. IN VIEW OF THIS, THE LEARNED COMMISSIONER OF INCOME TAX HELD THAT THERE WAS APPARENT DISCREPANCY AND LACK OF PROPER INVESTIGATI ONS DURING THE ASSESSMENT PROCEEDINGS. 3. IN VIEW OF THE NOTICE ISSUED UNDER SECTION 263 OF THE ACT, THE ASSESSEE MADE SUBMISSION BEFORE THE LEARNE D COMMISSIONER OF INCOME TAX THAT THE MARKET PRICE OF LAND AS ON 1.4.1981 WAS TAKEN AFTER TAKING VALUATION FROM E XPERT AND REPORT OF SUCH VALUATION WAS SUBMITTED DURING THE A SSESSMENT PROCEEDINGS. ACCORDING TO THE ASSESSEE, THERE WAS HUGE DIFFERENCE BETWEEN THE PRICE OF AGRICULTURAL LAND A ND INDUSTRIAL/COMMERCIAL LAND AND AS SUCH, THE PURCHAS E PRICE OF A PIECE OF LAND PURCHASED IN AUGUST 1981 WAS NOT CO NSIDERED AS IT WAS AGRICULTURAL LAND ONLY. IT WAS ALSO SUB MITTED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX THAT FAIR PR ICE OF INDUSTRIAL LAND WAS TAKEN INTO ACCOUNT WHILE CALCUL ATING LONG TERM CAPITAL GAIN. RELIANCE WAS ALSO PLACED ON A NUMBER OF JUDICIAL PRONOUNCEMENTS. 4. THE LEARNED COMMISSIONER OF INCOME TAX REJECTIN G THE ABOVE SAID SUBMISSIONS OF THE ASSESSEE HELD THA T THE FAIR MARKET VALUE OF LAND AS ON 1.4.1981 WAS TAKEN BY TH E ASSESSEE ON THE STRENGTH OF REPORT OF A REGISTERED VALUER, WHICH WAS NOT EVEN SUPPORTED BY THE DETAILS OF SALE S INSTANCES OR BASIS FOR TAKING THE VALUE OF LAND AT RS.11,31,000/- PER ACRE, WHEREAS THERE WAS AN AUTHE NTIC 4 INSTANCE OF PURCHASE OF LAND BY THE ASSESSEE HIMSEL F ON 12.8.1981, WHICH GAVE PURCHASE RATE OF RS.10,274/- PER KANAL AS AGAINST RS.37,090/- PER KANAL TAKEN BY THE ASSES SEE AND ACCEPTED BY THE ASSESSING OFFICER. THE LEARNED CO MMISSIONER OF INCOME TAX ALSO HELD THAT THE PLEA OF THE ASSESS EE OF HUGE VARIATION OF INDUSTRIAL LAND AND AGRICULTURAL LAND WAS ALSO NOT ACCEPTABLE BECAUSE ON 1.4.1981, THE LAND CANNOT BE SAID TO BE AN INDUSTRIAL LAND BECAUSE ON THAT DATE, NO BUILDIN G OF SHELLER AS CLAIMED, WAS CONSTRUCTED ON SUCH LAND. MOREOVE R, THE PURCHASE OF LAND BY THE ASSESSEE FOR THE PURPOSE OF DETERMINING THE FAIR MARKET VALUE AS ON 1.4.1981 WA S SUFFICIENT EVIDENCE ON RECORD TO ARRIVE AT THE CORR ECT AND FAIR MARKET VALUE OF LAND AS ON 1.4.1981 FOR THE PURPOSE OF CALCULATION OF CAPITAL GAIN. IN VIEW OF THIS, THE LEARNED COMMISSIONER OF INCOME TAX HELD THE ORDER OF THE AS SESSING OFFICER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE AND SET ASIDE THE SAME TO THE FILE OF THE A SSESSING OFFICER TO BE MADE AFRESH ON THE SAID ISSUE. 5. NOW, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL : 1. THAT THE ORDERS OF THE LD. CIT U/S 263 IS ILLEGAL , ERRONEOUS, PERVERSE AND THUS UNCALLED FOR. 2. THAT THE LD. CIT IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT, 1961 WHICH IS VO ID AB- INITIO AND THEREBY HOLDING THE ORDERS UNDER SCRUTINY PA SSED BY THE A.O. U/S 143(3) OF THE INCOME TAX ACT, 1961 AFTER PERUSING FOR COMPLETE DETAILS AS EVEN FILED ALONGWI TH THE INCOME TAX RETURN AND AFTER DUE APPLICATION OF MIND AND 5 PERUSING THE CONCERNED PROVISIONS OF THE INCOME TAX ACT,1961. 3. THAT THE LD. CIT IS NOT JUSTIFIED IN SETTING AS IDE THE ORDER PASSED U/S 143(3) WHILE REMANDING THE MATTER TO A.O., F OR RECONSIDERATION WITHOUT ALLOWING INSPECTION OF THE ASSESSMENT RECORD TO THE APPELLANT WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND OF LAW. 4. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL THE APPELLANT DISPUTES THE VERY INITIATION OF THE PROCEEDIN GS U/S 263 OF THE INCOME TAX ACT, 1961 AS BAD IN LAW A ND THEREBY SETTING ASIDE A WELL VERSED ORDERS OF THE A .O. TO BE DECIDED AFRESH. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR D ELETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE PRESENT APPEAL. IN SUBSTANCE, ALL THE GROUNDS ARE CHALLENGING THE V ALIDITY OF JURISDICTION OF LEARNED COMMISSIONER OF INCOME T AX UNDER SECTION 263 OF THE ACT. 6. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE ARGU ING THE CASE BOTH ON THE LEGALITY OF ORDER MADE UNDER S ECTION 263 OF THE ACT AS WELL AS ON MERITS, TOOK US THROUGH VA RIOUS PAGES OF THE PAPER BOOK FILED BY THE ASSESSEE TO SHOW THA T THE ASSESSING OFFICER HAD APPLIED HIS MIND ON THE SAID ISSUE IN THE PROCEEDINGS UNDER SECTION 143(3) OF THE ACT. P AGE-1 OF THE PAPER BOOK IS ACKNOWLEDGEMENT OF RETURN FILED BY TH E ASSESSEE AS ON 23.7.2007. PAGE- 3 OF THE PAPER BOOK IS COP Y OF COMPUTATION OF INCOME, WHICH IS ANNEXED WITH THE COMPUTATION OF LONG TERM CAPITAL GAIN/LOSS AT PAGE-4. TO CORROBORATE THE F IGURES TAKEN IN THOSE COMPUTATIONS, THE REFERENCE WAS INVITED TO PAGE 26 OF THE PAPER BOOK, WHICH IS A COPY OF VALUATION REPORT FROM THE REGIST ERED VALUER M/S RISHI PAL & ASSOCIATES. THE COPY OF SALE DEED IS PLACED AT PAGE 33 6 ONWARDS. IT WAS STATED THAT ALL THESE DOCUMENTS W ERE FILED WITH THE RETURN OF INCOME ITSELF. FURTHER, IN REP LY TO NOTICE DATED 5.5.2009 PLACED AT PAGE 40 OF THE PAPER BOOK, IT WAS CLARIFIED BEFORE THE ASSESSING OFFICER AT POINT NO. 1 THAT CAPITAL GAIN/LOSS ON SALE OF SHELLER LAND, BUILDING AND MACHINERY, ETC. WAS RETURNED AT RS.1,83,059/-. THE ASSESSMENT ORDER WAS PASSED AFTER THE SAID CORRESPO NDENCE AS ON 1.6.2009. THE LEARNED COUNSEL FOR THE ASSESSEE QUOTED BEFORE US A FEW LINES FROM PARA-2 OF THIS ASSESSMEN T ORDER, WHICH READS AS UNDER : THE ASSESSEE HAS SOLD HIS RICE MILL ALONGWITH LAND , BUILDING AND MACHINERY FOR RS.6450000/-. THE INDEXING COST OF THE ABOVE COMES TO RS.5986665/- BESIDES THE ABOVE THE ASSESSEE HAS ALSO DEDUCTED THE COST OF BUILDING, MACHINERY, FURNITURE ETC. AMOUNTING TO RS.646394/- FROM THE SALE CONSIDERATION. IN VIEW OF THE ABOVE THE LONG TERM CAPITAL LOSS COMES TO RS.183059/-. THE PURCHASE & SALE DEEDS OF LAND, BUILDING ETC. HAS BEEN OBTAINED AND PLACED ON RECORD. NO MANUFACTURING ACTIVITY WA S CARRIED OUT DURING THE YEAR UNDER CONSIDERATION. 7. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO REFER RED TO CERTAIN INCIDENTS OCCURRING AFTER THE COMPLETION OF ASSESSMENT. THERE IS A NOTICE UNDER SECTION 133(6 ) OF THE ACT PLACED AT PAGE 43 OF THE PAPER BOOK DATED 4.2.2010, WHICH IS A DATE LATER TO THE ASSESSMENT ORDER WHEREBY VIDE P OINT NOS.(V) AND (VI), SPECIFIC QUERY REGARDING THE SALE OF SAID PROPERTY WAS RAISED BY THE ASSESSING OFFICER. THIS NOTICE WAS DULY REPLIED BY THE ASSESSEE AS ON 19.2.2010. THE COPY OF THE 7 SAME IS PLACED AT PAGE 44 OF THE PAPER BOOK. ON 1 9.2.2010, NOTICE UNDER SECTION 154 OF THE ACT WAS ISSUED TO T HE ASSESSEE, COPY OF WHICH IS PLACED AT PAGE 45 AND 45 -A OF THE PAPER BOOK, WHEREBY SPECIFIC QUERY REGARDING THE TR ANSACTION OF SAID PROPERTY WAS MADE. THE REPLY TO THE SAID NOTICE WAS MADE BY THE ASSESSEE AS ON 29.7.2010, THE COPY OF W HICH IS PLACED AT PAGE 46 OF THE PAPER BOOK. IT WAS STATE D AT THE BAR THAT THESE PROCEEDINGS INITIATED BY THE NOTICE UNDE R SECTION 154 OF THE ACT HAS BEEN DROPPED SINCE NO ORDER HAS BEEN PASSED TILL DATE. ALL THESE DOCUMENTS WERE SHOWN TO US TO EMPHASIZE THE FACT THAT THE ASSESSING OFFICER WAS S EIZED OF THE WHOLE TRANSACTION TAKEN BY THE ASSESSEE. HE H AD SPECIFICALLY ASKED THE ASSESSEE FOR EXPLANATION OF THE SAME, WHICH WAS DULY REPLIED. THE ASSESSING OFFICER HAS APPLIED HIS MIND IN TAKING A VIEW. THE LEARNED COMMISSION ER OF INCOME TAX CANNOT ASSUME JURISDICTION UNDER SECTION 263 OF THE ACT ON DIFFERENCE OF OPINION. 8. THE LEARNED D.R RELIED UPON THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX MADE UNDER SECTION 263 O F THE ACT AND SUBMITTED THAT THE ASSESSMENT WAS MADE IN A CASUAL MANNER. THERE IS NO DISCUSSION OF THE SAID TRANSA CTION IN THE ASSESSMENT ORDER, NOR THERE IS ANY OFFICE NOTE APPE NDED TO THIS EFFECT TO THE ASSESSMENT ORDER. AS PER THE LE ARNED D.R., THE VALUATION REPORT ON WHICH THE ASSESSEE RELIED AND THE ASSESSING OFFICER ACCEPTED, WAS VERY VAGUE. HE R ELIED UPON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ARVEE INTERNATIONAL VS. ADDL. CIT, 101 ITD 495 ( ITAT MUM). 8 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE PAPER BOOK AS RELIED ON BY THE LEARNED COUNSEL FOR THE AS SESSEE, IT IS CLEAR THAT THE ASSESSEE HAS NOT ONLY DISCLOSED THE WAY IT HAD MADE CALCULATION OF CAPITAL LOSS, IT HAD ALSO ENCLO SED ALL THE CORROBORATIVE EVIDENCES TOGETHER WITH THE RETURN OF INCOME. FURTHER, THE ASSESSING OFFICER HAD RAISED A SPECIFI C QUERY WHICH THE ASSESSEE HAD DULY REPLIED. IN VIEW OF T HIS, IT CANNOT BE SAID THAT THE ASSESSING OFFICER HAS NOT A PPLIED HIS MIND AS ALLEGED BY THE LEARNED COMMISSIONER OF INCO ME TAX THAT HE HAS NOT MADE PROPER INVESTIGATION DURING TH E ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER WAS FULLY AWARE OF THE WHOLE MATTER. HE HAS APPLIED HIS MIND AND THEN PASSED THE ORDER. EVEN IN THE ORDER, HE HAS REFERR ED TO THE EVIDENCES ON WHICH HE HAS RELIED UPON TO COME TO A CONCLUSION IN CONSONANCE WITH THE CLAIM OF THE ASSE SSEE. EVEN AFTER PASSING OF THE ASSESSMENT ORDER, HE HAS ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT AND ALSO THE NOTICE UNDER SECTION 154 OF THE ACT, WHICH WERE DULY REPLI ED BY THE ASSESSEE. EVEN THE NOTICE UNDER SECTION 154 OF THE ACT MENTIONS THE FACTS WHICH HAVE BEEN STATED IN THE NO TICE UNDER SECTION 263 OF THE ACT ISSUED BY THE LEARNED COMMIS SIONER OF INCOME TAX LATER ON. IN VIEW OF THESE EVIDENCES, I T CANNOT BE SAID THAT THIS IS A CASE OF LACK OF ENQUIRY/INVESTI GATION. ON THE APPRAISAL OF THE SAID PLETHORA OF EVIDENCES, IF THE ASSESSING OFFICER TAKES A VIEW WHICH IS NOT IN CONSONANCE WITH THE VIEW OF THE LEARNED COMMISSIONER OF INCOME TAX, IT CANNOT GIVE THE LEARNED COMMISSIONER OF INCOME TAX THE 9 JURISDICTION UNDER SECTION 263 OF THE ACT. THIS IS CERTAINLY NOT A CASE OF LACK OF ENQUIRY, AT MOST, IT MAY BE A CASE OF INADEQUATE ENQUIRY, WHICH ALSO TO OUR MIND, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, DOES NOT SEEM CORRECT. 10. THE FINDINGS OF THE LEARNED COMMISSIONER OF IN COME TAX IN 263 PROCEEDINGS AND ALSO THE ARGUMENTS OF TH E LEARNED D.R. DURING THE COURSE OF HEARING THAT THERE WAS SO ME MISTAKE IN THE VALUATION REPORT OF REGISTERED VALUE R, WHICH THE ASSESSEE ENCLOSED WITH THE RETURN OF INCOME, AL SO DOES NOT ADVANCE THE CASE OF THE DEPARTMENT. IT IS A CASE IN WHICH ON THE BASIS OF EVIDENCES FILED BY THE ASSESSEE, THE A SSESSING OFFICER FORMS AN OPINION AND THEN MAKES THE ASSESSM ENT. THERE IS NOTHING ILLEGAL IN THIS. THERE IS NO LA W WHICH SAYS THAT THE VALUATION REPORT HAS TO BE DRAWN IN A CERT AIN SPECIFIC FASHION. THE VALUATION IS AN ART AND ANY VALUATION OFFICER WHO IS REGISTERED BY THE GOVERNMENT TO MAKE SUCH KIND OF VALUATION CAN MAKE HIS OWN BASIS FOR VALUIN G THE PROPERTY. IN THE PRESENT CASE, THE VALUATION HAS BEEN DONE BY A REGISTERED VALUER, WHICH THE ASSESSING OFFICER HAS PERUSED AND FORMED AN OPINION. NO SPECIFIC PROCED URE HAS BEEN PRESCRIBED UNDER THE STATUTE AS TO HOW THE ASS ESSING OFFICER HAS TO REACT IN SUCH SITUATION. 11. AN ORDER CAN BE REVISED UNDER SECTION 263 OF T HE ACT BY THE LEARNED COMMISSIONER OF INCOME TAX ONLY IF I T SATIFIES THE TWIN CONDITIONS OF BEING ERRONEOUS AS WELL AS P REJUDICIAL TO THE INTERESTS OF REVENUE. IN THE PRESENT CASE, WE FIND NO ERROR IN THE ORDER OF THE ASSESSING OFFICER. OUR V IEW GETS 10 STRENGTHEN BY THE JUDGMENT OF THE HON'BLE APEX COUR T IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT(2000) 243 ITR 83 (SC), WHEREIN IT WAS HELD AS UNDER : WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN L OSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE UNLESS THE VIEW TAKEN BY TH E INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. 12. THE SAID VIEW HAS ALSO BEEN HELD IN A JUDGMENT OF THE HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH CO URT IN THE CASE OF CIT VS. INDO GERMAN FABS, ITA NO.248 O F 2012, DATED 24 TH DECEMBER, 2014, IN THE FOLLOWING WORDS : SECTION 263 OF THE ACT CONFERS POWER TO EXAMINE AN ASSESSMENT ORDER SO AS TO ASCERTAIN WHETHER IT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BUT DOES NOT CONFER JURISDICTION UPON THE C IT TO SUBSTITUTE HIS OPINION FOR THE OPINION OF THE ASSESSING OFFICER. THE WORDS PREJUDICIAL AND ERRONEOUS HAVE TO BE READ IN CONJUNCTION AND THEREFORE, IT IS NOT EACH AND EVERY ERROR IN AN ASSESSMENT THAT INVITES EXERCISE OF POWERS UNDER SECTION 263 OF THE ACT, BUT ONLY ORDERS THAT ARE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 13. THE LEARNED COMMISSIONER OF INCOME TAX CAN IN VOKE JURISDICTION UNDER SECTION 263 OF THE ACT IN A SITU ATION WHEN THERE IS A LACK OF ENQUIRY. IF THERE IS AN INQUIRY , HOWEVER, INADEQUATE IT MAY BE, IT DOES NOT GIVE JURISDICTION TO THE LEARNED COMMISSIONER OF INCOME TAX UNDER SECTION 2 63 OF THE 11 ACT TO SUBSTITUTE HIS OPINION. IN THE PRESENT CASE , THE WORDS USED BY THE LEARNED COMMISSIONER OF INCOME TAX IN HIS ORDER UNDER SECTION 263 OF THE ACT ARE APPARENT DISCREPA NCY AND LACK OF PROPER INVESTIGATION WHICH ITSELF SHOWS TH AT EVEN THE LEARNED COMMISSIONER OF INCOME TAX ACCEPTED THE FA CT THAT THERE WAS SOME INVESTIGATION. THOUGH IT MAY NOT BE PROPER IN HIS OPINION. IN CASE OF DIFFERENCE OF OPINION, THE LEARNED COMMISSIONER OF INCOME TAX CANNOT INVOKE THE JURISD ICTION UNDER SECTION 263 OF THE ACT. THIS VIEW ALSO GET SUPPORTED BY THE LANDMARK JUDGMENT OF THE HON'BLE BOMBAY HIGH CO URT IN THE CASE OF GABRIEL INDIA LTD. (1993) 203 ITR 108 (BOM). 14. ANOTHER SITUATION IN WHICH THE JURISDICTION UN DER SECTION 263 OF THE ACT CAN BE PERCEIVED IS THE CAS ES IN WHICH THERE IS SOME INQUIRY/INVESTIGATION BUT AFTER THE A PPRAISAL OF SUCH INQUIRY THE ASSESSING OFFICER TAKEN A VIEW, WH ICH IS NOT IN ACCORDANCE WITH LAW. 15. IN THE PRESENT CASE, THE ONLY DISPUTE IS WITH REGARD TO VALUATION OF SOLD PROPERTY AS ON 1.4.1981. AS PER THE ASSESSEE, THE VALUE TAKEN IS IN ACCORDANCE WITH THE REPORT OF THE REGISTERED VALUER, WHICH THE ASSESSING OFFICER ACCEPTED WHILE THE LEARNED COMMISSIONER OF INCOME TAX WANTE D TO SUBSTITUTE THE SAME TO THE VALUE OF SOME OTHER PROP ERTY PURCHASED BY THE ASSESSEE ITSELF A FEW MONTHS LATER . IT IS A MATTER OF FACT THAT THE ASSESSING OFFICER BEING AN ADJUDICATING OFFICER HAS TO FORM AN OPINION ON THE BASIS OF EVI DENCES, WHICH HE HAS DULY DONE. IF THE LEARNED COMM ISSIONER OF INCOME TAX ON THE SAME SET OF EVIDENCE DRAWS DIFFER ENT 12 OPINION, IT BEING A QUESTION OF FACT, DOES NOT GIVE HIM JURISDICTION TO REVISE THE SAME UNDER SECTION 263 O F THE ACT. THIS IS CERTAINLY A CASE OF DIFFERENCE OF OPINION B ETWEEN THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX. THE PROVISION OF SECTION 263 OF THE ACT CANNOT BE INVOK ED IN SAID CIRCUMSTANCES. 16. THE CASE LAW RELIED ON BY THE LEARNED D.R. IN ARVEE INTERNATIONAL VS. ADDL. CIT (2006) 101 ITD 495 (MUM -TRIB) IS DISTINGUISHABLE ON FACTS AS IN THAT CASE, THERE WAS A FINDING OF FACT THAT THE ORDER OF THE ASSESSING OFFICER WAS PA SSED WITHOUT APPLICATION OF MIND. 17. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER O F THE LEARNED COMMISSIONER OF INCOME TAX MADE UNDER SECT ION 263 OF THE ACT AS THE ORDER OF THE ASSESSING OFFICER IS NOT FOUND TO BE ERRONEOUS. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF AUGUST, 2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 19 TH AUGUST, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH FIT FOR PUBLICATION SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER