Smt. Geeta Ben Parikh, Indore V. The CIT-II, Indore

ITA 51/IND/2011

• Counselvise Citation: 5122714 RSA 2011
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 25-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAVE SAXENA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Cost of acquisition; Fair market value; Valuation report; Assessment record; Prejudicial to interest
• Section: 143(3); 50C; 54F; 142(1); 54; 263; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.51/IND/2011 A.Y. 2006-07 SMT. GEETA BEN PARIKH, INDORE PAN AJEPP 1990 K C/O ANIL KAMAL & GARG, CAS 1 ST FLOOR, KUBER PALACE, 35, JAORA COMPOUND, INDORE ... APPELLANT VS CIT-II, INDORE ... RESPONDENT APPELLANT BY : SHRI ANIL KAMAL GARG, CA RESPONDENT BY : SHRI KESHAVE SAXENA, CIT/DR DATE OF HEARING : 21.11.2011 DATE OF PRONOUNCEMENT : 21.11.2011 O R D E R PER JOGINDER SINGH THIS APPEAL IS BY THE ASSESSEE CHALLENGING THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX DATED 29.3.2011 ON THE FOLLOWING GROUNDS: 2 1. THAT, THE LD. CIT GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER U/S 143(3) OF THE I.T. ACT, 1961. 2A) THAT, THE LD. CIT GROSSLY ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE I.T. ACT, 1961 WITHOUT CONSIDERING THE MATERIAL FACT THAT THE ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. B) THAT, THE LD. CIT GROSSLY ERRED IN ASSUMING THE JURISDICTION U/S 263 OF THE ACT WITHOUT CONSIDERING THE MATERIAL FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT HAD BROUGHT ON RECORD ALL THE MATERIALS AND EVIDENCES RELATING TO THE ISSUE AND THE SAME WERE DULY VERIFIED BY THE ASSESSING OFFICER AFTER APPLICATION OF HIS MIND. 2. DURING HEARING OF THIS APPEAL, THE LEARNED COUNS EL FOR THE ASSESSEE CONTENDED THAT THE LD. COMMISSIONER GROSSL Y ERRED IN INVOKING THE PROVISIONS OF SECTION 263, OF THE ACT, WITHOUT CONSIDERING THE MATERIAL FACTS AND THE ASSESSMENT O RDER ESPECIALLY WHEN THE ASSESSMENT ORDER IS NEITHER ERR ONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. IT WAS CONT ENDED THAT DURING ASSESSMENT PROCEEDINGS, NECESSARY DETAILS WE RE FILED 3 BY THE ASSESSEE AND THE SAME WERE DULY EXAMINED BY THE ASSESSING OFFICER. A PLEA WAS ALSO RAISED THAT THE ASSESSMENT WAS FRAMED U/S 143(3) AND THAT TOO WHEN THE NECESSA RY DETAILS WERE FULLY AND TRULY DISCLOSED REGARDING TRANSFER O F PLOTS AND THE LONG TERM CAPITAL GAIN OF RS.45,807/- FROM TRANSFER OF THE SUBJECT PROPERTY. OUR ATTENTION WAS INVITED TO VARI OUS PAGES OF THE PAPER BOOK SHOWING THE DETAILS OF COMPUTATION O F LONG TERM CAPITAL GAIN (PAGES 20 & 21 OF PAPER BOOK). A STRON G PLEA WAS RAISED THAT DESCRIPTION OF PLOTS, HOUSE TRANSFER, A REA OF PLOT, CONSTRUCTED AREA OF THE HOUSE, DATE AND MODE OF TRA NSFER, ACTUAL SALE CONSIDERATION RECEIVED AND VALUATION MA DE FOR PAYMENT OF STAMP DUTY WERE ALSO FILED. IT WAS SUBMI TTED THAT ONE OF THE POSSIBLE VIEW WAS TAKEN BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD. CIT/DR SHRI KESHAVE SAXE NA STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIA L TO THE INTEREST OF THE REVENUE AND DETAILED ASSESSMENT ORD ER HAS NOT BEEN FRAMED BY THE ASSESSING OFFICER. 4 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. THE FACTS, IN BRIEF , ARE THAT THE ASSESSEE IS AN INDIVIDUAL, DECLARED TOTAL INCOME OF RS.1,67,301/- IN HER RETURN FILED ON 28.2.2007. THE CASE WAS SELECTED FOR SCRUTINY, THEREFORE, NOTICE U/S 143(2) WAS ISSUED TO WHICH THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDI NGS FROM TIME TO TIME AND ALSO FILED WRITTEN SUBMISSION ALON G WITH DETAILS ASKED FOR. THE ASSESSEE SHOWED INCOME FROM BUSINESS , CAPITAL GAIN AND ALSO FROM OTHER SOURCES. ADMITTEDLY, THE A SSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNT. THE LD. ASSESSI NG OFFICER ASKED THE ASSESSEE TO FURNISH NECESSARY DETAILS LIK E, LOANS, CONFIRMATIONS, DETAILS OF UNSECURED LOANS, DETAILS OF CAPITAL GAINS, DETAILS OF RETURNS, DETAILS OF INVESTMENT MA DE IN MOVABLE AND IMMOVABLE PROPERTIES, DETAILS OF SHARE INCOME, DETAILS OF BANK STATEMENT, DETAILS OF SALE OF ASSETS AND DETAI LS OF CLAIMING EXEMPTION U/S 54EC AND 54 OF THE ACT. THE ASSESSEE WAS ALSO ASKED TO SUBMIT DETAILS OF COMMISSION PAID, DETAILS OF INTEREST, BANK DETAILS, HOUSEHOLD EXPENSES AND OTHER DETAILS WHICH WERE NECESSARY FOR FRAMING THE ASSESSMENT. THERE IS A CL EAR FINDING 5 IN THE ASSESSMENT ORDER THAT THE NECESSARY DETAILS WERE FILED BY THE ASSESSEE AND THE SAME WERE VERIFIED AND WERE KE PT ON RECORD. THE RELEVANT PORTION FROM THE ASSESSMENT OR DER ARE REPRODUCED HEREUNDER: 2. THE ASSESSEE HAS SHOWN INCOME FROM BUSINESS, CAPITAL GAIN AND OTHER SOURCE. THE ASSESSEE MAINTAI NS REGULAR BOOKS OF ACCOUNT. THE ASSESSEE WAS CALLED F OR UPON TO FURNISH THE DETAILS OF LOAN CONFIRMATIONS, DETAILS OF UNSECURED LOANS, DETAILS OF CAPITAL GAIN, DETAIL S OF IT RETURNS, DETAILS OF INVESTMENT MADE IN MOVABLE AND IMMOVABLE PROPERTIES, DETAILS OF SHARE INCOME, DETA ILS OF BANK STATEMENT, SALE OF ASSETS, DETAILS OF CLAIM ING EXEMPTION U/S 54EC & 54 OF THE ACT, DETAILS OF COMMISSION PAID, DETAILS OF INTEREST, BANK DETAILS, HOUSEHOLD EXPENSES ETC. AND OTHER DETAILS FROM TIME TO TIME. THE RELEVANT DETAILS CALLED FOR HAVE BEEN VER IFIED AND PLACED ON RECORD. 3. DURING THE ASSESSMENT PROCEEDINGS FROM THE BOOKS OF ACCOUNT NOTICED THAT, ON ACCOUNT OF HOUSE HOLD EXPENSES THE ASSESSEE HAS SHOWN WITHDRAWAL OF RS.38,000/- ONLY, BUT ASSESSEE HAS NOT SHOWN ANY WITHDRAWAL ON ACCOUNT OF HOUSE HOLD EXPENSES DURING THE YEAR FOR MEETING HOUSE HOLD EXPENSES. THE ASSESSEE HAS NOT SUBMITTED DETAILS OF HEAD WISE WITHDRAWALS MADE FOR EXPENSES INCURRED ON ELECTRICI TY AND POWER, EDUCATION, WATER AND HOUSE ETC. THE FAMI LY OF THE ASSESSEE COMPRISES OF HERSELF, HUSBAND, ONE SON AND ONE DAUGHTER. THE ASSESSEE HAS NOT SUBMITTED AN Y EVIDENCE IN SUPPORT OF HIS CLAIM, HENCE LOOKING TO THE FAMILY SIZE AND KEEPING IN VIEW OF HOUSE HOLD EXPENSES, WITHDRAWAL MADE BY THE ASSESSEE IS SEEMS TO BE LOW. HENCE, CONSIDERING THESE FACTS ON ACCOUN T OF LOW WITHDRAWAL LUMP-SUM AMOUNT OF RS.25,000/- IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. THE ASSESSEE WAS GIVEN SHOW CAUSE NOTICE, IN RES PONSE TO WHICH, THE ASSESSEE MADE FOLLOWING SUBMISSIONS B EFORE THE DEPARTMENT: 6 3. IN RESPONSE TO THE SHOW CAUSE NOTICE, SHRI ANIL KAMAL GARG, CA AND AR OF THE ASSESSEE ATTENDED FROM TIME TO TIME AND MADE WRITTEN SUBMISSIONS. SHRI NARENDRA PATEL, PRESIDENT AND SHRI MAHESH SAHU,VICE PRESIDENT OF TH E GUJRATI COOPERATIVE HOUSING SOCIETY LTD. APPEARED IN COMPLI ANCE WITH SUMMONS AND FILED WRITTEN REPLY AND PHOTO COPIES OF DOCUMENTS. THE PROCEEDINGS REGISTER IN WHICH THE PLOTS OF SMT. SAVITABEN WERE TRANSFERRED IN THE NAME OF ASSESSEE SMT. GEETA BEN WAS NOT PRODUCED AS THE SAME IS SAID TO BE NOT AVAILABLE WI TH THE SOCIETY AT PRESENT. 4. THE ASSESSEE HAS MADE SUBMISSIONS AS UNDER: 'IN THE SHOW CAUSE NOTICE, UNDER REFERENCE, YOUR HO NOUR STATED TO HAVE SEEN FROM THE ASSESSMENT RECORDS THAT THE ASSESSING OFFICER DID NOT MAKE REQUISITE ENQUIRY IN RELATION TO INCOME FROM LONG TERM CAPITAL GAIN ON SALE OF LAND WITH HOUSE SITUATED AT 111-112, VALLABH NAGAR, INDORE SHOWN BY THE ASSESSEE .AT RS.45,807/ - IN THE COMPUTATION OF TOTAL INCOME ACCOMPANYING THE RETURN OF INCOME. IT HAS FU RTHER BEEN OBSERVED BY YOUR HONOUR THAT THE ASSESSEE DID NOT FURNISH ADEQUATE/ NECESSARY DOCUMENTS IN SUPPORT OF HER CLAIM FOR DED UCTION OF THE INDEX COST OF THE CAPITAL ASSET UNDER SECTION 49(L)(II) READ WITH SECTION 55(2)(V) OF THE ACT. AT PARA 4.0 OF THE SHOW CAUSE NOTICE, YOUR HONOUR FURTHER STATED THAT NON-FURNISHING OF THE REQUISITE DETAILS BY THE ASSESSEE HAS MADE THE ASSESSMENT ORDER PASSED UNDER S. 143(3) ON 19-12-2008 PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3.00 YOUR HONOUR WOULD APPRECIATE THAT THE PROVISI ONS OF SECTION 263 WOULD COME INTO OPERATION ONLY IF TWIN CONDITIONS M ANIFEST IN THE SECTION ARE SATISFIED. SUCH CONDITIONS ARE THAT THE ORDER SOUGHT TO BE REVISED MUST BE ERRONEOUS AND SECONDLY THE ORDER MU ST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. IT IS A SETTLED LAW THAT IF EITHER OF THESE TWO CONDITIONS ARE NOT MET, THE PROVISIONS OF SECTION 263 CANNOT BE INVOKED. IN THE INSTANT CASE, IN VIEW OF THE FACTS AND .. CIRCUMSTANCES OF THE CASE AND OUR SUBMISSION ELICITED IN SUBSEQUENT PARAS, TH E SUBJECT ASSESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE I NTEREST OF THE REVENUE AND THEREFORE THE PROVISIONS OF SECTION 263 OF THE ACT, IN THE INSTANT CASE, DOES NOT DESERVE TO BE INVOKED BY YOUR HONOUR. 7 4.01 THE ASSESSEE HAD MANUALLY FILED HER RETURN OF INCOME, PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATION, VOLUNTARIL Y UNDER THE PROVISIONS OF S. 139(4} OF THE INCOME-TAX ACT, 1961, ON 28- 02-2007, DECLARING TOTAL INCOME OF RS.L,67,30L/ -'. A XEROX COPY OF THE ACKNOWLEDGEMENT OF THE RETURN IS BEING SUBMITTED HE REWITH FOR A READY REFERENCE AS ANNEXURE A-1.01 [PB PAGE NO.1]. 4.02 ALONG WITH THE RETURN OF TOTAL INCOME, THE ASS ESSEE HAD FURNISHED COMPUTATION OF TOTAL INCOME, COPY OF STATEMENT SHOW ING COMPUTATION OF LONG-TERM CAPITAL GAIN AND ALL OTHER NECESSARY D OCUMENTS AS PER DETAILS GIVEN AT THE BOTTOM OF THE PAGE NO.2 OF THE COMPUTATION-OF TOTAL INCOME. A COPY OF ALL THE RELEVANT DOCUMENTS, WHICH WERE DULY SUBMITTED BY THE ASSESSEE ALONG WITH HER RETURN OF INCOME, ARE BEING SUBMITTED HEREWITH FOR KIND PERUSAL AND READY REFER ENCE OF YOUR HONOUR AS ANNEXURE A-1.02 TO A-1.12 [PB PAGE NO 2 TO 64} 4.03 THE CASE OF THE ASSESSEE WAS SELECTED FOR SCR UTINY AND THE FIRST NOTICE U./ S. 143(2} WAS ISSUED TO HER ON 09-07-2007 FIXING THE DATE OF HEARING ON. 27-072007. SUBSEQUENTLY, A FURT HER NOTICE DATED 14-03~2008 U/ S. 142(1} ALONG WITH A 'QUESTIONNAIRE' WAS ALSO ISSUED BY THE LEARNED ASSESSING OFFICER. A XEROX COPY OF T HE NOTICE AND QUESTIONNAIRE ARE BEING SUBMITTED HEREWITH FOR KIND PERUSAL AND READY REFERENCE OF YOUR HONOUR AS ANNEXURE A-2.01 & A-2.02 [PB PAGE NO. 65 TO 68]. ON A PERUSAL OF THE QUESTIONNAIRE, IT WOULD BE OBSERVED BY YOUR HONOUR THAT THE LEARNED AO HAD ISS UED THE QUESTIONNAIRE FOR AS MANY AS 28 ISSUES OUT OF WHICH THE ISSUES SERIALLY NUMBERED 1 TO 15 WERE RELATED TO GENERAL DETAILS AND ISSUES SERIALLY NUMBERED 16 TO 28 WERE RELATED TO BUSINESS DETAILS. 4.04 ON A PERUSAL OF THE QUESTIONNAIRE ( PAPER BOO K PAGE NO. 67), ACCOMPANIED TO THE SAID NOTICE, IT SHALL BE OBSERVED BY YOUR HONOUR THAT THE LEARNED ASSESSING OFFICER, INTER-A LIA, VIDE QUESTION NO. 18 VERY CATEGORICALLY REQUIRED THE ASSESSEE TO FURNISH COMPLETE DETAILS ON THE SUBJECT ISSUE OF LONG TERM CAPITAL GAIN. FOR READY COMPLETE DETAILS ON THE SUBJECT ISSUE OF LONG TERM CAPITAL GAIN. FOR READY REFERENCE THE DETAILS REQUIRED BY THE ASSESSI NG OFFICER ARE REPRODUCED AS UNDER : 8. WITH REGARD TO SALE OF ASSET PLEASE PROVIDE TH E NAMES AND ADDRESS OF THE PERSON TO WHOM THE ASSET HAS BEEN SO LD AND THE MODE 8 OF RECEIPT, THE BANK ETC. IN WHICH THE MONEY HAS BE EN DEPOSITED. IN CASE OF SALE OF IMMOVABLE PROPERTY, GIVE PURCHASE D OCUMENT OF THE SAID PROPERTY. ALSO PRODUCE COPY OF BANK ACCOUNT IN WHIC H THE SALE PROCEEDS HAVE BEEN DEPOSITED BY THE COMPANY. PLEASE FURNISH DATE WISE NARRATION OF THE ENTRIES APPEARING IN THE BANK ACCO UNT. IN CASE OF CLAIM OF EXEMPTION U/ S 54B/ D/ G ETC. PLEASE JUSTIFY THE CLAIM WITH EVIDENCE AND THE SECTIONS IN WHICH THE S AME HAVE BEEN CLAIMED. ' 4.05 IN COMPLIANCE OF THE NOTICE AND THE ACCOMPANIED QUESTIONNAIRE, THE ASSESSEE MADE A DETAILED REPLY O N EACH AND EVERY ISSUE CONTAINING IN THE QUESTIONNAIRE VIDE HER COUN SEL'S LETTER DATED 26- 11-2008. SUCH LETTER WAS DULY ACKNOWLEDGED BY THE O FFICE OF THE LEARNED AO ON 26-11-2008 ITSELF. A XEROX COPY OF T HE LETTER IS BEING SUBMITTED HEREWITH AS ANNEXURE A-3.00 (PB PAG E NO 69 TO 72J. ON A PERUSAL OF THE LETTER, IT SHALL BE APPRECIATED BY YOUR HONOUR THAT THE APPELLANT HAD MADE FULL COMPLIANCE OF EACH AND EVERY QUERY RAISED BY THE LEARNED AO IN HIS QUESTIONNAIRE. SINCE THE I SSUES SERIALIZED AT POINT NO.16 TO 28 OF THE QUESTIONNAIRE WERE NOT APP LICABLE IN THE CASE OF THE ASSESSEE AND, THEREFORE, THE ASSESSEE VERY C ATEGORICALLY, AT SERIAL NO.1S OF THE LETTER, HAD STATED SO. IN SUM AND SUBS TANCE, THE ASSESSEE HAD FULLY COMPLIED WITH THE NOTICE UNDER S. 142(1) OF THE ACT. 4.06THE ASSESSEE HAD FURNISHED THE COMPLETE DETAILS WITH DOCUMENTARY EVIDENCES ON THE ISSUE OF LONG TERM CAPITAL GAIN. SINCE, THE ASSESSEE HAD ALREADY FURNISHED CERTAIN DOCUMENTS RE QUIRED BY THE LEARNED AO ALONG WITH THE RETURN OF INCOME ITSELF, AND, THEREFORE, IN ORDER TO AVOID RESUBMISSION OF THE DOCUMENTS, THE ASSESSEE M ADE A REFERENCE OF SUCH DOCUMENTS IN HER REPLY. SOME OF T HE PARTICULARS REQUIRED BY THE LEARNED AO AS REGARD TO SALE OF THE ASSETS WERE ALSO FURNISHED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME IN FORM OF A SEPARATE STATEMENT AND, THEREFORE, FOR AVOIDING DU PLICATION, SHE REQUESTED THE LEARNED AO TO MAKE A REFERENCE OF SUCH STATEMENT. FOR A READY REFERENCE, THE REPLY OF THE ASSESSEE ON THE S UBJECT ISSUE IS .BEING REPRODUCED AS UNDER: 8A). DETAILS OF SALE OF ASSETS IN THIS CONTEXT, IT IS SUBMITTED THAT DURING THE YEAR UNDER REVIEW, THE ASSESSEE HAS SOLD HER RESIDENTIAL HOUSE AND ADJOINI NG PLOT SITUATED RESPECTIVELY AT PLOT NO.111 AND 112, VALLABH NAGAR, INDORE TO FOUR / 9 PERSONS NAMELY, SHRI ASHOK, KUMAR S/O SHRISAMRATHMA L CHORDIA SMT. MANJU WLO SHRI ASHOK KUMAR CHORDIA, SHRI RITESH SIO SHRI ASHOK KUMAR CHORDIA AND SMT. DIVYA WLO SHRI RITESH CHORDI A, ALL RESIDENTS OF 103147, NEW AGRAWAL NAGAR, INDORE, UNDER A SALE DEED DULY EXECUTED ON 19-07-2005 FOR A CONSIDERATION OF RS. 42,11,0001 -'. A COPY OF THE REGISTERED SALE DEED HAS ALREADY BEEN F URNISHED BY THE ASSESSEE ALONG WITH THE RETURN OF TOTAL INCOME. BESIDES, THE ASSESSEE HAS ALSO SUBMITTED ALL THE NE CESSARY PARTICULARS AS REGARD TO SALE, ACQUISITION AND CAPITAL GAIN ARI SING ON SALE OF SUCH PROPERTY IN A SEPARATE STATEMENT FILED ALONG_WITH. THE RETURN OF TOTAL INCOME. THE ENTIRE SALE PROCEEDS WERE RECEIVED BY T HE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUES ONLY AND SUCH CHEQUES WERE DULY DEPOSITED BY THE ASSESSEE IN HER SAVINGS BANK ACCOU NT BEARING NO. 10965 MAINTAINED WITH VIJAYA BANK, SIYAGANJ BRANCH, INDORE. A COPY OF BANK PASSBOOK OF SUCH ACCOUNT ALONG WITH THE DET AILS THEREOF ARE BEING ENCLOSED HEREWITH AS ANNEXURE A-2.01 TO A-2.0 3. 8B). CLAIM OF EXEMPTION UNDER SECTIONS 54EC & 54 OF THE INCOME-TAX ACT, 1961 OUT OF CAPITAL GAIN OF RS.1 9,52,7071 - AS WORKED OUT IN THE STATEMENT OF CAPITAL GAIN REFERRED TO ABOVE, THE ASSESSEE HAS CLAIMED EXEMPTION UNDER S. 54EC OF THE ACT OF A SUM OF RS.1 0,00,0001 - ON ACCOUNT OF INVESTMENT IN BONDS OF RURAL ELECTRIFICATION CORPOR ATION LIMITED MADE BY HER ON 19-01-2006 I. E. WITHIN A PERIOD OF 6 MONTHS FROM THE DATE OF TRANSFER OF SUBJECT PROPERTY. A COPY OF THE CERTIFICATE EVIDENCING SUCH INVESTMENT HAS ALREADY BEEN SUBMITTED ALONG WITH TH E RETURN OF TOTAL INCOME. BESIDES, THE ASSESSEE HAS ALSO CLAIMED DEDUCTION U NDER SECTION 54 OF THE ACT IN RESPECT OF AMOUNT DEPOSITED BY HER IN CAPITAL GAIN ACCOUNT SCHEME, 1988 AT RS.6,50,OOOI - AS ALSO FOR MAKING INVESTMENT IN CONSTRUCTION OF A RESIDENTIAL HOUSE A T RS.2,56,9001- AS PER DETAILS GIVEN IN THE ABOVE REFERRED STATEMENT O F COMPUTATION OF CAPITAL GAIN. ALL THE NECESSARY EVIDENCES IN SUPPOR T OF SUCH CLAIM HAVE ALREADY BEEN FURNISHED BY THE ASSESSEE ALONG W ITH HER RETURN OF TOTAL INCOME. 4.07 THE LEARNED AO, AFTER PLACING ON RECORD THE AF ORESAID WRITTEN SUBMISSION AND OTHER DOCUMENTS, AS REFERRED TO IN THE WRITTEN 10 SUBMISSION, MADE A DETAILED VERIFICATION ON THE ISS UE AND, AFTER APPLYING HIS MIN AND SATISFYING HIMSELF WITH THE DE TAILS AND CORRECTNESS OF THE DOCUMENTS, FORMED AN OPINION THA T THE INCOME SHOWN BY THE ASSESSEE FROM SALE OF THE ASSET IS CORRECT AND COMPLETE AND, IT WAS THEREFORE) HE DID NOT CHOOSE TO DRAW ANY ADVERSE INFERENCE IN. RESPECT OF THE INCOME SHOWN BY THE ASSESSEE IN HER RETURN OF INCOME. SUCH FACT IS APPARENT FROM THE SECOND PARAGRAPH OF THE BODY OF THE ASSESSMENT ORDER ITSELF. FOR A READY REFEREN CE, THE FACTUAL STATEMENT OF THE LEARNED AO IS REPRODUCED AS BELOW: 2.THE ASSESSEE HAS SHOWN INCOME FROM BUSINESS, CAPI TAL GAIN AND OTHER SOURCE. THE ASSESSEE MAINTAINS REGULAR BOOKS OF ACC OUNTS. THE ASSESSEE WAS CALLED FOR UPON TO FURNISH THE DETAILS OF LOAN CONFIRMATIONS) DETAILS OF UNSECURED LOANS, DETAILS OF CAPITAL GAINS, DETAILS OF IT RETURNS) DETAILS OF INVESTMENT MADE I N MOVABLE AND IMMOVABLE PROPERTIES) DETAILS OF SHARE INCOME) DETA ILS OF BANK STATEMENT, SALE OF ASSETS) DETAILS OF CLAIMING EXEM PTION U/ S. 54EC & 54 OF THE IT ACT, DETAILS OF COMMISSION PAID, DETAILS OF INTEREST) BANK DETAILS, HOUSEHOLD EXPENSES ETC. AND OTHER DETAILS FROM TIME TO TIME, THE RELEVANT DETAILS CALLED FOR HAVE BEEN VERIFIED AND PLACED ON RECORD.' [EMPHASIS SUPPLIED} 4.08IN VIEW OF THE ABOVE STATED FACTS AND CIRCUMSTA NCES OF THE CASE, IT IS VERY RESPECTFULLY SUBMITTED THAT THE FINDING GIVEN BY YOUR HONOUR IN PARAGRAPH 4.0 OF THE IMPUGNED NOTICE TO THE EFFECT THAT THE ASSESSING OFFICER DID NOT MAKE REQUISITE ENQUIRY IN RELATION TO THE CAPITAL GAIN IS NOT CORRECT. .IT SHALL BE APPRECIATED BY YOUR HONOU R THAT THE ASSESSEE HAD FURNISHED ALL THE REQUIRED DETAILS AND DOCUMENT S IN CONNECTION WITH LONG TERM CAPITAL GAIN ALONG WITH THE RETURN O F INCOME ITSELF. THE ASSESSEE HAD ALSO FURNISHED OTHER DETAILS AS REGARD TO FULL DESCRIPTION OF THE PROPERTY SOLD, COMPLETE NAMES AND ADDRESSES OF THE PURCHASERS, MODE OF TRANSFER, DETAILS OF DOC UMENTS THROUGH WHICH THE TRANSFER TOOK PLACE, THE DATE OF TRANSFER ) CONSIDERATION FOR TRANSFER, THE MODE OF RECEIPT OF CONSIDERATION) NUM BER OF CHEQUE THROUGH WHICH THE CONSIDERATION WAS RECEIVED) THE D ETAILS OF SAVING BANK ACCOUNT IN WHICH THE SALES CONSIDERATION WAS D EPOSITED) DETAILS AND EVIDENCES REGARDING CLAIM OF EXEMPTION UNDER S. 54EC AND FINALLY DETAILS AND EVIDENCES REGARDING CLAIM OF DEDUCTION UNDER S. 54 ALONG WITH HER SUBMISSION LETTER DATED 26-11-2008 [PB PAGE NO. 71] SUBMITTED BEFORE THE LEARNED AO. THE RECEIPTS OF AL L SUCH DETAILS AND DOCUMENTS BY THE LEARNED AO IS CLEARLY DISCERNIBLE FROM THE 11 PARAGRAPH :2 OF THE BODY OF THE ASSESSMENT ORDER. FURTHER, THE VERIFICATION OF ALL SUCH DETAILS AND DOCUMENTS BY T HE LEARNED AO, AFTER APPLYING HIS MIND, IS ALSO BEYOND ANY DOUBT AS IS APPARENT FROM THE ABOVE STATED PARAGRAPH 2 OF THE ASSESSMENT ORDER. 4.09 IT IS A SETTLED LAW THAT IF AN ASSESSING OFFICER FORM A PARTICULAR OPINION ON ANY- ISSUE, AFTER MAKING DET AILED ENQUIRY AND AFTER APPLYING HIS MIND, THEN SUCH OPINION OF THE A O CANNOT BE REVIEWED BY ANY HIGHER AUTHORITY UNDER THE GARB OF REVISIONARY POWERS CONFERRED UNDER SECTION 263 OF THE ACT. IN SUCH CASES, THE ORDER OF THE ASSESSING OFFICER CANNOT BE SAID TO BE ERRONEOUS. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I) CIT VS. RATLAM COAL ASH CO. (1988) 171 ITR 141 (MP) II) MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) III} CIT VS. ARVIND JEWELLERS (2003) 259 ITR 502 (GUJ) IV} PAUL MATHEWS & SONS VS. CIT (2003) 263 ITR 101 (KER) 5.01 YOUR HONOUR, HAVING DEMONSTRATED ABOVE THAT T HE ORDER PASSED BY THE LEARNED AO IS NOT ERRONEOUS, NOW IT IS SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED AO IS ALSO N OT PREJUDICIAL TO THE INTEREST OF THE REVENUE FOR THE REASON THAT THE ASSESSEE HAD RIGHTLY CLAIMED INDEXED COST OF ACQUISITION AND HAD ALSO RI GHTLY CLAIMED DEDUCTIONS UNDER S. 54EC/54 OF THE ACT. SINCE THE ASSESSEE HAD CORRECTLY MADE CLAIM FOR ALL DEDUCTIONS AND, THEREF ORE, THE RESULTED LONG TERM CAPITAL GAIN SHOWN IN THE RETURN OF INCOME ALSO GOT COMPUTED AND ASSESSED IN ACCORDANCE WITH THE LAW. I N SUCH CIRCUMSTANCES, THE ORDER OF THE ASSESSING OFFICER C ANNOT BE SAID TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. 5.02 YOUR HONOUR, AS REGARD ELIGIBILITY OF THE ASS ESSEE TO COMPUTE INDEXED COST OF ACQUISITION IN RESPECT OF T HE SUBJECT ASSETS IN ACCORDANCE WITH PROVISIONS OF SECTION 49(1) AND SECTION 55(2) OF THE ACT, IT IS SUBMITTED THAT THE ASSESSEE HAS RIGHTLY INVOKED SUC H PROVISIONS. YOUR HONOUR, SUB-SECTION (1) OF SECTION 49, CONSISTING OF FIVE CLAUSES FROM CL. (I) TO (IV) CONTEMPLATES COST WITH REFERENCE TO CERTAIN MODES OF ACQUISITION. CLAUSE (II) CONTEMPLA TES THE SITUATION OF ACQUISITION OF CAPITAL ASSET UNDER A GIFT OR WILL. UNDER THE SAID SUB- SECTION, IT HAS BEEN PROVIDED THAT THE COST OF ACQUISITION OF THE ASSET ACQUIRED IN THE MODES REFERRED TO IN CLAUSES (I) TO (IV) SHALL BE DEEMED TO 12 BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PRO PERTY ACQUIRED IT. SUB- SECTION (2) OF SECTION 55 OF THE ACT PROVIDES FOR THE COMPUTATION OF COST OF ACQUISITION FOR THE PURPOSE OF SECTIONS 48 AND 49 OF THE ACT. SUCH SUB- SECTION (2) IS DIVIDED INTO FOUR CLAUSES VIZ. CL. (A), (AA), (AB) AND (B). THE FIRST THREE CLAUSES ARE APPLICABLE IN RESPECT OF IN TANGIBLE ASSETS ARE SHARES AND, THEREFORE, THE SAME ARE NOT SUBJECT MATTER HER E. CLAUSE (B) RELATES TO OTHER ASSETS WHICH ARE NOT COVERED UNDER OTHER THRE E CLAUSES. CLAUSE (B) OF SECTION 55(2) IS AGAIN DIVIDED INTO FIVE SUB-CLAUSES. UNDER SUB-CLAU SE (II) OF CLAUSE (B) WHERE THE CAPITAL ASSETS BECAME THE PROPERTY OF AN ASSESSEE BY ANY OF THE MODES SPECIFIED IN SUB-SECTI ON (1) OF SECTION 49 AND THE CAPITAL ASSET BECAME THE PROPERTY OF THE PREVIO US OWNER BEFORE THE 1 ST DAY OF APRIL, 1981, THE COST OF ACQUISITION MEANS THE COST OF THE CAPITAL ASSET TO THE PREVIOUS OWNER OR THE FAIR MARKET VALUE OF THE ASSET ON THE 1 ST DAY OF APRIL, 1981, AT THE OPTION OF THE ASSESSEE. AFTER HAVING A LOOK AT THE RELEVANT PROVISIONS OF T HE ACT, NOW IT IS SUBMITTED THAT THE CASE OF THE ASSESSEE CLEARLY FAL LS UNDER THE PROVISIONS OF SECTION 49(1} READ WITH SECTION 55(2)(B)(II) OF THE ACT. IT SHALL BE APPRECIATED BY YOUR HONOUR THAT THE ASSESSEE HAD RE CEIVED THE PROPERTY UNDER A WILL DEED DATED 03-081992 EXECUTED BY HER M OTHER-IN-LAW NAMELY LATE SMT. SAVITABEN WLO SHRI SUMANLAL CHUDGA R WHO PASSED AWAY ON 29-08-1992. A COPY OF THE WILL DEED AND DEA TH CERTIFICATE OF LATE SAVITABEN CHUDGAR, AS PLACED ON THE RECORD OF THE LEARNED AO, ARE PLACED AT PB PAGE NO. 36 & 37 AND PAGE NO. 38 RESPE CTIVELY, WHICH IS NOW BEING SUBMITTED BEFORE YOUR HONOUR. IT SHALL BE WORTHWHILE TO NOTE THAT SINCE THE DECEASED SMT. SAVITABEN WAS INT ENDED TO MAKE A WILL IN RESPECT OF THE SUBJECT PLOTS IN FAVOUR OF T HE ASSESSEE AND, THEREFORE, DURING HER LIFE TIME ONLY, SHE MADE TWO SEPARATE APPLICATIONS BOTH DATED 06-08-1991 TO THE PRESIDENT OF THE CONCERNING SOCIETY I.E. SHRI VALLABH NAGAR GUJARATI HOUSING CO-OP. LTD. AND MADE REQUEST FOR TRANSFER OF THE PLOTS STANDING IN HER NAME IN THE S OCIETY'S RECORDS TO THE NAME OF THE ASSESSEE. SMT. SAVITABEN, THE DECEASED, HAD ALSO PAID PRESCRIBED TRANSFER FEES TO THE SOCIETY. IN OTHER W ORDS, THE CONDITION SPECIFIED IN THE CLAUSE (II) OF SUB-SECTION (1) OF SECTION 49 STAND SATISFIED IN THE INSTANT CASE. IT WOULD NOT BE OUT OF PLACE TO MENTION HERE THAT ALL SUCH FACTS WERE DULY MENTIONED BY THE ASSESSEE IN THE STATEMENT SHOWING COMPUTATION OF LONG-TERM CAPITAL GAIN AS FILED ALONG WITH THE RETURN OF INCOME. IN OTHER WORDS, THE RELE VANT FACTS WITH DOCUMENTARY EVIDENCES WERE DULY PLACED ON THE RECOR D OF THE LEARNED 13 AO. THE FACT REGARDING ACQUISITION OF THE CAPITAL ASSET BY THE PREVIOUS OWNER I. E. LATE SMT. SAVITABEN SUMANLAL CHUDGAR BEFORE 01-04-1981 IS EVIDENCED FROM THE COPY OF TWO SEPARATE LEASE DEEDS EXECUTED BY SHRI GUJARATI CO-OPERATIVE HOUSING SOCIETY LTD. ON 01-04-1960 IN FAVOUR OF THE ABOVE NAMED LADY. THE COPIES OF SUCH LEASE DEED S ARE PLACED AT PA.G ES NO. 34 & 35 OF THE PAPER BOOK. THE FACT REGARDING INHERITANCE OF THE PROPERTY BY THE ASSESSEE FROM THE ABOVE NAME D LADY HAS ALREADY STOOD ESTABLISHED VIDE SUBMISSION IN THE PRECEDING PARA. IN SUCH CIRCUMSTANCES, IT SHALL BE APPRECIATED BY YOUR HONO UR THAT THE ASSESSEE WAS LEGALLY ENTITLED TO OPT FOR THE FAIR MARKET VALUE OF THE ASSETS AS ON 01-04-1981 AS CONTEMPLATED UNDER THE PROVISIONS OF SECTION S5(2)(B)(II) OF THE ACT. IT SHALL FURTHER B E APPRECIATED BY YOUR HONOUR THAT ALL THE DOCUMENTS ESTABLISHING THE CLAI M OF THE ASSESSEE WERE DULY PLACED ON RECORD OF THE LEARNED AG. ALTHOUGH) THE FAIR MARKET VALUATION OF THE PROPERTY AS ON 01-04-1981 IS NOT A SUBJECT MATTER OF DISPUTE AND THE SAME IS NOT A REASON CI.TED BY YOUR HONOUR IN THE IMPUGNED SHOW CAUSE NOTICE, STILL IT IS SUBMITTED THAT IN ORDER TO ESTABLISH THE FAIR MARKET VALUE OF THE PROPERTY TRA NSFERRED, THE ASSESSEE HAD SUBMITTED A COPY OF THE VALUATION REPORT OBTAIN ED BY HER FROM A REGISTERED VALUER, NAMELY, SHRI PRAMOD SARAJ, DULY APPROVED UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. A COPY OF SUCH VALUATION REPORT WAS ALSO SUBMITTED BY THE ASSESSEE ALONG WIT H HER RETURN OF INCOME AND THE SAME IS ALSO BEING PLACED AT PAGE NO. 39 TO 52 OF THE PAPER BOOK. 5.03 AS REGARD FURNISHING OF THE NECESSARY EVIDENCES IN SUP PORT OF THE COMPLETION OF THE CONSTRUCTION OF THE HOUSE WITHIN THE STATUTORILY PRESCRIBED TIME LIMIT OF THREE YEARS, IT IS SUBMITT ED THAT THE SUBJECT TRANSFER OF THE ASSET TOOK PLACE ON 19-07-2005 UNDE R A REGISTERED SALE- DEED AND THE ASSESSEE FILED HER RETURN OF INCOME JU ST WITHIN 1 9 MONTHS OF SUCH TRANSFER AND) THEREFORE, THERE WAS NEITHER ANY REQUIREMENT NOR ANY OCCASION FOR THE ASSESSEE TO FURNISH SUCH EVIDENCES. HOWEVER) UNDER THE PROVISIONS OF SECTION 54(2) OF THE ACT, THE ASSESSEE WAS REQUIRED TO MAKE A DEPOSIT OF THE UN-APPROPRIATED AMOUNT IN A SEPARATE ACCOUNT IN ACCORDANCE WITH THE CAPITAL GAIN ACCOUNT SCHEME, 1988, REGISTERED WITH THE OFFICE OF THE SUB-REGISTRAR VIDE REGISTERE D ENTRY NO. 1A/936 & 1A/937 ON 14-06-1960. AFTER OBTAINING THE PLOTS ON LEASE BASIS, SMT. SAVITABEN HAD GOT A THREE STORIED RESIDENTIAL HOUSE CONSTRUCTED ON THE SAID PLOTS. ALL SUCH FACTS ARE EVIDENCED FROM THE P ARA (1) (INTERNAL PAGE NO. 4J OF THE SALE DEED DULY EXECUTED BY THE A SSESSEE IN FAVOUR OF 14 THE PURCHASERS OF THE SUBJECT PROPERTY ON 19-07-2005. A XEROX COPY OF THE SALE DEED IS ALREADY PLACED ON RECORD OF YOUR HONOUR, AT PAGES NO.6 TO 32 OF OUR PREVIOUS COMPILATION. 2.NECESSITY FOR BEQUEATHING THE SUBJECT PROPERTY THROUGH WILL DATED 03-08-1992 DURING THE COURSE OF THE HEARING, YOUR HONOUR HAD A LSO REQUIRED THE ASSESSEE TO EXPLAIN THAT UNDER WHAT CIRCUMSTANCES THE DECEASED PREVIOUS OWNER, SMT. SAVITABEN CHUDGAR BEQUEATHED T HE SUBJECT PLOT AND HOUSE THEREON IN HER WILL EXECUTED ON 03-08-1992 IN THE NAME OF THE ASSESSEE WHEN SHE HAD ALREADY TRANSFERRED THE S AME PROPERTY DURING HER LIFE TIME I.E. ON 0608-1991, IN FAVOUR O F THE ASSESSEE BY WAY OF GETTING HER NAME MUTED IN THE RECORD OF THE HOUS ING SOCIETY IN WHICH THE SAID PLOTS FALLS. IN THIS CONTEXT, IT IS SUBMITTED AS UNDER: I)IT IS AN UNDISPUTED FACT THAT THE DECEASED SMT. S AVITABEN CHUDGAR WAS THE ABSOLUTE AND REGISTERED OWNER (LESSEE) OF T HE SUBJECT PLOTS. SHE HAD OBTAINED THE LEASE AS PER THE DESCRIPTIONS GIVEN IN THE PRECEDING PARA FROM GUJARATI CO-OPERATIVE HOUSING S OCIETY LIMITED. IT SHALL BE PERTINENT TO NOTE THAT THE 'VALLABH NAGAR COLONY' IN WHICH THE SUBJECT PLOTS ARE LOCATED HAS BEEN DEVELOPED BY THE ABOVE SAID SOCIETY ONLY AND THE DECEASED WAS ONE OF THE MEMBERS OF THE SOCIETY. II) AFTER TAKING THE PLOTS, ON LONG-TERM LEASE BAS IS, THE NAME OF SMT. SAVITABEN CHUDGAR WAS ENTERED IN THE REGISTER OF THE CONCERNING SUB REGISTRAR OF THE PROPERTY UNDER THE INDIAN STAM PS ACT, AS OWNERS/ LESSEE OF THE PLOTS. THE NAME OF SMT. SAVITABEN CHU DGAR WAS ALSO ENTERED IN THE RECORDS OF THE ABOVE NAMED HOUSING S OCIETY GRANTED THE LEASE TO HER. V)THAT, SINCE THE TRANSFER OF THE PLOTS FROM THE DE CEASED TO THE ASSESSEE HAD NOT TAKEN PLACE IN ACCORDANCE WITH THE PROVISIO NS OF THE TRANSFER OF PROPERTY ACT, 1882 AND THEREFORE, IN ORDER TO MAKE THE ASSESSEE AS THE PERFECT LEGAL OWNER, LATE SMT. SAVITABEN CHUDGA R IN HER WILL EXECUTED ON 03-08-1992 BEQUEATHED THE SUBJECT PROPERTY IN FAVOUR OF THE ASSESSEE. MERELY BECAUSE THE DECEASED DID NOT M ENTION THE FACTS REGARDING TRANSFER OF THE PLOTS IN THE NAME OF THE ASSESSEE IN THE SOCIETY'S RECORD WOULD NOT MAKE HER WILL UNBELIEVAB LE WHICH HAS BEEN ACTED UPON AND REMAINED UNCHALLENGED BY ALL THE LEG AL HEIRS AND _ 15 SUCCESSORS OF THE DECEASED. IT SHALL NOT BE OUT OF PLACE TO MENTION HERE THAT A COPY OF THE WILL DEED WAS DULY FURNISHED BY THE LEGAL HEIR OF THE DECEASED ALONG WITH THE FIRST RETURN OF INCOME I.E. FOR A. Y. 1993-94, FILED AFTER THE DEATH OF THE DECEASED WITH THE INCO ME-TAX OJJICER-2(3), INDORE ON 19-01-1994 VIDE ACK. NO. 3994'. 5. THE LD. COMMISSIONER ON APPRAISAL OF AFORESAID SUBMISSIONS AND EXPLANATION OF THE ASSESSEE HELD AS UNDER: 5.0 I HAVE GONE THROUGH THE ASSESSMENT RECORDS AND SUBMISSIONS OF THE ASSESSEE. 5.1 FROM THE COPIES OF LEASE DEED ISSUED BY THE SOCIETY , IT IS SEEN THAT PLOT NOS. 111 AND 112 WERE ALLOTTED BY THE SOCIETY TO SMT. SAVITABEN VIDE LEASE DEEDS DTD. 01- 04-60. AS PER CONDITION NO.4 OF THE LEASE DEED, CONSTRUCTION OF THE HOUSE WAS TO BE STARTED WITHIN SIX MONTHS FROM DATE OF BLOCK CERTIFICATE OR FROM THE DATE OF GRANT OF LEASE I.E. 01-04-60. HOWEVER, FROM THE COPY OF VALUATION REPORT DTD. 04- 01-2006 OBTAINED FROM SHRI PRAMOD SARAF, REGISTERED VALUER, IT IS CLAIMED BY THE ASSESSEE THAT THE HOUSE WAS CONSTRUC TED IN THE YEAR 1957.THUS; THE YEAR OF CONSTRUCTION PRECEDES T HE DATE OF BLOCK CERTIFICATE OR GRANT OF LEASE I.E. 01-04-60. IN STILL OTHER WORDS, THE ASSESSEE CLAIMS(I) THAT EVEN THOUGH HER MOTHER IN LAW HAD ACQUIRED THE PLOTS ON 01-04-60; (II) EVEN T HOUGH THE SAID PLOTS WERE TRANSFERRED TO THE ASSESSEE BY HER MOTHER IN LAW ON 06-08-1991; BUT: STILL, (III) THE ASSESSEE C LAIMED THAT A THREE STOREYED HOUSE WAS CONSTRUCTED ON THE SAID PL OTS IN THE YEAR 1957 WITH ESTIMATED LIFE OF 18 YEARS ONLY [COP Y OF SUCH REPORT IS ENCLOSED WITH THIS ORDER AS ANNEXURE 'A'] . THE CONTRADICTIONS IN THE DATES EXPOSES THE MANIPULATIO NS IN THE STORY COOKED UP BY THE ASSESSEE THIS FACT ALSO EXPO SES THE FALSITIES ABOUT THE DATE OR DATES OF ACQUISITION OF THE PROPERTY AS BRIEFED BY THE ASSESSEE TO THE SAID VALUER SHRI PRAMOD SARAF. THIS IS MORE SO BECAUSE HAD THE VALUER SHRI SARAF MISTAKEN HIMSELF ABOUT THE DATES OR YEAR OF CONSTRU CTION OF THE THREE STOREYED. SAVITABEN, WHAT WAS THE NEED OF TAKING CONSENT OF HER HUSBAND CHANDRAKANT PARIKH. THIS FAC T ITSELF 16 PROVES THAT THE ASSESSEE HERSELF HAD FULL KNOWLEDGE OF REAL FACTS ABOUT THE SO CALLED WILL OF LATE SAVITABEN. S HE HAD TO TAKE CONSENT OF CHANDRAKANT PARIKH BEING THE SON AN D THE LEGAL HEIR OF FIRST CATEGORY OF LATE SAVITABEN IN O RDER TO AVOID ANY CHALLENGE BY HER HUSBAND TO THE SO CALLED WILL. 5.4 SO FAR AS THE QUESTION OF EXECUTION OF THE WILL IS CONCERNED IT IS CLAIMED THAT THE SAME HAS BEEN ACTE D UPON AND HAS REMAINED UNCHALLENGED BY ALL THE LEGAL HEIR S AND SUCCESSORS OF THE DECEASED BUT NO EVIDENCE IN THIS BEHALF HAS BEEN PLACED ON RECORD. SUCH CONTENTION IN ADDITION TO NON- PRODUCTION OF ORIGINAL WILL VITIATES THE GENUINENES S OF THE WILL. 5.5 FROM THE DETAILS FURNISHED BY THE ASSESSEE, IT IS SEEN THAT THERE IS NO MENTION OF FACTS ABOUT INVESTMENT IN TH E CONSTRUCTION OF HOUSE ON THE PLOT NUMBERS 111 AND 1 12 SOLD BY HER VIDE SALE DEED DATED 19-07-05. SUCH OMISSION ON HER PART MAKES THE DISCLOSURE OF FACTS MORE SECRETIVE A ND OBSCURE CALLING FOR DEEPER PROBE AND THROUGH INVESTIGATIONS . THE GLARING DISCREPANCY NOTED IN THE DATES AND YEAR OF CONSTRUCTION SHOWN BY THE ASSESSEE AND GIVEN BY THE REGISTERED VALUER SHRI PRAMOD SARAF FURTHER AGGRAVA TES THE PROBLEM AND EXPOSES THE ASSESSEE TO HAVE INDULGED I N PRODUCING THE FABRICATED DOCUMENTS WITH A AVOWED PU RPOSE OF EVADING THE PAYMENT OF CORRECT TAX ON CAPITAL GA INS ARISING FROM THE SALE OF THE SUBJECT CAPITAL ASSET LE, THE HOUSE BUILT ON PLOT NUMBERS 111 AND 112 OF VALLABHNAGAR. 5.6 CONSIDERING THE ABOVE FACTS AND KEEPING IN MIND THE ULTIMATE MOTIVE OF THE ASSESSEE TO EVADE PAYMENT OF CORRECT TAX ON CAPITAL GAINS BY RESORTING TO PRODUCTION OF FABRICATED DOCUMENTS THE ORDER PASSED U/S 143(3) DTD. 19-12-20 08 BY THE INCOME TAX OFFICER, 4(1), INDORE IS FOUND TO BE BOTH ERRONEOUS FOR MAKING DE NOVO ASSESSMENT AFTER GIVIN G A REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSI NG OFFICER IS DIRECTED TO MAKE PROPER ENQUIRIES ON THE FOLLOWING SPECIFIC POINTS WHILE MAKING DE NOVO ASSESSMENT : (I) CORRECT DATE OF ACQUISITION OF PLOT NUMBERS 11 1 AND 112 BY LATE SAVITABEN BE AS ASCERTAINED FROM THE ORIGIN AL RECORDS OF THE SOCIETY. (II) CORRECT YEAR OF CONSTRUCTION OF HOUSE ON THE S AID PLOTS BE ASCERTAINED FROM MUNICIPAL RECORDS. IF THE PERIOD OF CONSTRUCTION FALLS WITHIN THE LIMITS OF SECTION 149 , APPROPRIATE ACTION MAY BE CONSIDERED FOR EXAMINING THE SOURCES INVESTMENT MADE THEREIN. 17 (III) ORIGINAL DOCUMENTS CLAIMED TO HAVE BEEN HAND ED OVER BY THE ASSESSEE TO THE PURCHASE OF HOUSE MAY B E CALLED FOR BY ISSUE OF SUMMONS AND EXAMINED. (IV) ORIGINAL WILL BE LATE SAVITABEN HE OBTAINED. (V) CORRECT NAMES AND ADDRESSES OF THE TWO WITNESS ES OF THE WILL OF LATE SAVITABEN BE OBTAINED AND THE W ITNESSES EXAMINED U/ S 131. (VI) VERACITY OF BROKERAGE PAYMENT ON SALE OF HOUS E BE EXAMINED U/S 131. IN ADDITION TO ABOVE, THE ASSESSING OFFICER MAY MAK E FURTHER ENQUIRIES AS HE DEEMS FIT KEEPING IN VIEW ALL THE F ACTS AND CIRCUMSTANCES OF THE CASE. 6. ACCORDINGLY THE ASSESSMENT ORDER PASSED U/S 143( 3) DATED 19-12-2008 IS BEING SET ASIDE BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IN VIEW OF D ETAILED OBSERVATION AND FINDINGS RECORDED ABOVE AND AO IS D IRECTED TO MAKE FRESH ASSESSMENT IN ACCORDANCE WITH LAW DEN OVO AFTER GIVING PROPER OPPORTUNITIES TO ASSESSEE. 3. 6. IN THE LIGHT OF THE ABOVE, WE ARE SUPPOSED TO EX AMINE WHAT TYPES OF INQUIRIES WERE MADE BY THE LD. ASSESS ING OFFICER AND THE PAPERS, DOCUMENTS AND OTHER DETAILS SUBMITT ED BY THE ASSESSEE. THE ASSESSEE FILED ITS RETURN U/S 139 OF THE ACT ON 28.2.2007 (PAPER BOOK PAGES 17 TO 21) AND THE ASSES SMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 1 9.12.2008 ASSESSING THE INCOME AT RS.1,92,301/- AGAINST THE R ETURNED INCOME OF RS.1,67,301/-, MEANING THEREBY, ADDITION OF RS.25,000/- WAS MADE ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWALS. THE ASSESSEE IN ITS RETURN DISCLOSED F ULL 18 INFORMATION INCLUDING DETAILS REGARDING ACCRUAL OF LONG TERM CAPITAL GAIN FROM TRANSFER OF PLOT WITH HOUSE SITUA TED AT 111-112, VALLABH NAGAR, INDORE. IF THE COMPUTATION OF INCOME (PAPER BOOK PAGE 18) IS ANALYSED, IT IS OBSERVED THAT THE ASSESSEE DULY DECLARED THE CAPITAL GAIN OF RS.45,807/- AND T HE DETAILS OF SUCH LONG TERM CAPITAL GAIN WAS VERY MUCH SUBMITTED ALONG WITH THE RETURN OF INCOME ITSELF WHICH IS AVAILABLE AT PAGES 20 & 21 OF THE PAPER BOOK. IT IS FURTHER OBSERVED THAT T HE DETAILS LIKE DESCRIPTION OF PLOTS, AREA OF PLOTS, CONSTRUCTED AR EA OF THE HOUSE, DATE AND MODE OF TRANSFER, ACTUAL SALE CONSI DERATION RECEIVED BY THE ASSESSEE AND SALE CONSIDERATION ADO PTED BY THE VALUATION AUTHORITIES FOR STAMP DUTY PURPOSES, EXPENSES INCURRED BY THE ASSESSEE FOR GETTING THE TRANSFER O F THE PROPERTY, MODE AND YEAR OF THE ACQUISITION, FAIR MARKET VALUE OF THE PROPERTY AS ON 1.4.1998, DEEMED COST OF ACQUISITION IN THE HANDS OF THE ASSESSEE, COST INFLATION INDEX, INDEXE D COST ACQUISITION, DETAILS OF INVESTMENT ALONG WITH ITS D ATE AND CLAIM OF DEDUCTION U/S 54EC, DETAILS OF DEPOSIT IN CAPITA L GAIN ACCOUNT SCHEME AND DETAILS OF INVESTMENT IN PLOTS MEANT FOR RESIDENTIAL 19 HOUSE FOR MAKING DEDUCTION U/S 54 OF THE ACT ETC. W ERE DULY SUBMITTED BEFORE THE ASSESSING OFFICER. IT IS PERTI NENT TO MENTION HERE THAT THE ASSESSEE IN ITS RETURN FOR AS SESSMENT YEAR 2006-07 DULY ANNEXED THE COMPUTATION OF INCOME (PAGES 17 TO 21 OF PAPER BOOK) DULY MENTIONING THE INCOME FROM THE LONG TERM CAPITAL GAIN ON SALE OF LAND WITH HOUSE S ITUATED AT 111-112, VALLABH NAGAR, INDORE SHOWING THE GAIN OF RS.45,807/- ALONG WITH DOCUMENTS CONTAINING SUCH DE TAILS. THESE DETAILS ARE NOT BEING REPRODUCED HERE, BEING MATTER OF RECORD. EVEN OTHERWISE, THE ASSESSING OFFICER MADE SPECIFIC INQUIRY ON THE ISSUE OF SALE OF ASSET AND VIDE SPEC IAL QUESTION NO.8 IN THE QUESTIONNAIRE SPECIFICALLY ASKED THE AS SESSEE TO FURNISH THE COMPLETE DETAILS OF LONG TERM CAPITAL G AIN. FOR READY REFERENCE, THE DETAILS, REQUIRED BY THE ASSESSING O FFICER ARE REPRODUCED HEREUNDER: 8. WITH REGARD TO SALE OF ASSET PLEASE PROVIDE THE NAMES AND ADDRESS OF THE PERSON TO WHOM THE ASSET HAS BEEN SO LD AND THE MODE OF RECEIPT, THE BANK ETC. IN WHICH THE MONEY H AS BEEN DEPOSITED. IN CASE OF SALE OF IMMOVABLE PROPERTY, GIVE PURCHAS E DOCUMENT OF THE SAID PROPERTY. ALSO PRODUCE COPY OF BANK ACC OUNT IN WHICH THE SALE PROCEEDS HAVE BEEN DEPOSITED BY THE COMPANY. PLEASE FURNISH DATE WISE NARRATION OF THE ENTRIES A PPEARING IN THE BANK ACCOUNT. 20 IN CASE OF CLAIM OF EXEMPTION U/S 54B/D/G ETC. PLEA SE JUSTIFY THE CLAIM WITH EVIDENCE AND THE SECTIONS IN WHICH THE S AME HAVE BEEN CLAIMED. PURSUANT TO THE AFORESAID INQUIRY, THE ASSESSEE FIL ED DETAILED REPLY ON EACH AND EVERY ISSUE VIDE LETTER DATED 26. 11.2008 WHICH WAS DULY ACKNOWLEDGED BY THE ASSESSING OFFICE R. THE COPY OF THE SAME IS AVAILABLE AT PAGES 83 TO 86 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE DETAILS OF CONSTRUC TION OF THE HOUSE ARE AVAILABLE AT PAGES 87 & 88 OF THE PAPER B OOK. 7. IN THE LIGHT OF THE ABOVE, NOW QUESTION ARISES WHETHER ONE OF THE POSSIBLE VIEWS WAS TAKEN BY THE ASSESSING OFFIC ER AND IF YES, WHETHER IT CAN BE REVIEWED BY INVOKING REVISIO NARY POWERS U/S 263 BY THE LD. COMMISSIONER. THE LANDMARK DECIS ION ON THIS ISSUE IS FROM HONBLE APEX COURT IN MALABAR IND. CO . LTD. VS CIT; 243 ITR 83 (SC) WHEREIN IT WAS CLAERY HELD THA T THE CONDITION PRECEDENT FOR INVOKING THE JURISDICTION U /S 263 OF THE ACT IS THAT THE ORDER SHOULD BE ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF THE REVENUE AND PREJUDICIAL TO THE REV ENUE MUST BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER, MEA NING THEREBY, THE LD. COMMISSIONER HAS TO BE SATISFIED O F THESE TWIN 21 CONDITIONS. WHILE COMING TO THIS CONCLUSION, THE HO NBLE APEX COURT AFFIRMED THE DECISION OF HON'BLE KERLA HIGH C OURT PASSED IN 198 ITR 611 (KER) AND ALSO CONSIDERED THE FOLLOW ING DECISIONS: CIT VS. GABRIEL INDIA LTD. (1993) 203 ITR 108 (BOM) ; CIT VS. MINALBEN S. PARIKH (SMT.) (1995) 215 ITR 81 (GUJ); CIT VS. NARAYANA PAI (T.) (1975) 98 ITR 422 (KAR); CIT VS. RAJA BENOY KUMAR SAHAS ROY (1957) 32 ITR 46 6 (SC). DAWJEE DADABHOY AND CO. VS. S.P. JAIN (1957) 31 ITR 872 (CAL); RAMPYARI DEVI SARAOGI VS. CIT (1968) 67 ITR 84 (SC) ; TARA DEVI AGGARWAL (SMT.) VS. CIT (1973) 88 ITR 323 (SC). THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. RATLAM COAL S. COMPANY; 171 ITR 141 (MP) ALSO HELD IDENTICALLY. THE DECISION FROM HON'BLE GUJARAT HIGH COURT WHEREIN THE ASSESSING OFFICER CONSIDERED THE MATERI AL ON RECORD AND FRAMED THE ASSESSMENT. IT WAS HELD THAT THE LD. COMMISSIONER IS NOT JUSTIFIED IN INVOKING THE JURIS DICTION U/S 263 OF THE ACT. WHILE COMING TO THIS CONCLUSION, THE HO N'BLE COURT APPLIED THE DECISION FROM HONBLE APEX COURT IN MAL ABAR IND. CO. LTD. VS. CIT (SUPRA) AND ALSO CONSIDERED CIT VS . SHRI MANJU 22 NATHESHWARE PACKING PRODUCTS AND CAMPHOR WORKS (231 ITR 53) (SC). IDENTICAL RATIO WAS LAID DOWN BY HON'BLE KERALA HIGH COURT IN PAUL MATHEWS & SONS VS. CIT (263 ITR 101) (KER). 8. NOW QUESTION ARISES WHETHER THE ASSESSMENT ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, WE FIND THAT THE LONG TERM CAPITAL GAIN OF RS.45,807/-, SHOWN BY THE ASSE SSEE IN HER COMPUTATION OF INCOME, IS BASED UPON SUPPORTING DOC UMENTS AND NOT BASED ON PRESUMPTION AS THE PROVISIONS OF S ECTION 45 AND DETERMINATION OF CONSIDERATION IS IN ACCORDANCE WITH SECTION 48 R.W.S. 50-C OF THE ACT. FOR COMPUTING CA PITAL GAIN U/S 45 OF THE ACT, BROADLY, THE FOLLOWING FACTORS A RE TO BE CONSIDERED: A) EXISTENCE OF A CAPITAL ASSET AND ITS TRANSFER DU RING THE RELEVANT PREVIOUS YEAR. B) DETERMINATION OF CONSIDERATION FOR THE TRANSFER IN ACCORDANCE WITH SECTION 48 READ WITH SECTION 50C OF THE ACT. C) DETERMINATION OF THE EXPENDITURE UNDER SECTION 4 8 OF THE ACT. D) ASCERTAINMENT OF THE MODE OF ACQUISITION AND THE PROOF THEREOF IF THE CAPITAL ASSET IS ACQUIRED BY AN ASSESSEE BY WAY OF WILL AS CONTEMPLATED UNDER SECTION 49(1)(II) OF THE ACT. E) ESTABLISHMENT OF THE FACT, RELATING TO THE ACQUI SITION OF THE CAPITAL ASSET BY THE PREVIOUS OWNER BEFORE 1.4.1981 FOR THE PURPOSE OF COMPUTING COST OF ACQUISITION U/S 55(2)(B)(II) OF THE ACT. F) ASCERTAINMENT OF THE FAIR MARKET VALUE, AS ON1.4 .1981, OF THE CAPITAL ASSET UNDER TRANSFER, WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE 23 UNDER WILL AND THE PREVIOUS OWNER ACQUIRED THE CAP ITAL ASSET BEFORE 1.4.1981, IN ACCORDANCE WITH SECTION 55(2)(B)(II) OF THE ACT . G) DETERMINATION OF INDEXED COST OF ACQUISITION UND ER THE SECOND PROVISO TO SECTION 48 OF THE ACT READ WITH EXPLANATION (III) TO SECTION 48. H) DETERMINATION OF LONG TERM CAPITAL GAIN SUBJECT TO GRANT OF DEDUCTIONS CONFERRED UNDER S. 54, 54B, 54EC, 54F ETC. I) DETERMINATION OF DEDUCTION UNDER S. 54EC ON THE BASIS OF INVESTMENT IN THE SPECIFIED ASSETS. J) DETERMINATION OF DEDUCTION UNDER S. 54F ON THE B ASIS OF DEPOSIT IN THE CAPITAL GAIN ACCOUNT SCHEME OR UTILIZATION FOR THE SPECIFI C PURPOSE. IN THE LIGHT OF THE ABOVE, IT CAN BE SAID THAT THE NECESSARY DETAILS WERE DULY FILED BY THE ASSESSEE ALONG WITH ITS RETURN, AND THEREAFTER WHEN THE ASSESSING OFFICER MADE ENQU IRIES AND QUESTIONNAIRE WAS ALSO ISSUED TO THE ASSESSEE, THE SALE DEED EXECUTED ON 19.7.2005 (PAPER BOOK PAGES 22 TO 29) E VIDENCING THE EXISTENCE OF CAPITAL ASSET AND THE NAME OF THE ASSESSEE IS CLEARLY MENTIONED IN THE SALE DEED IN THE CAPACITY OF THE SELLER DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEA R 2005-06. SO FAR AS DETERMINATION OF CONSIDERATION FOR TRANSF ER IN ACCORDANCE WITH SECTION 48 R.W.S. 50C OF THE ACT IS CONCERNED, IT IS OBSERVED THAT THE AMOUNT OF THE SALE CONSIDER ATION (PAPER BOOK PAGES 20 & 21), RECEIVED BY THE ASSESSEE, FROM THE SALE OF PROPERTY AT RS.42,11,000/- IS CORROBORATIVE BY P ARA 7 (INTERNAL 24 PAGE 10) OF THE SALE DEED (PAPER BOOK PAGE 31), MEA NING THEREBY, THE ASSESSEE SUO MOTO OFFERED THE AMOUNT O F CONSIDERATION. THE VALUATION OF THE PROPERTY AT RS. 42,36,500/- BY THE CONCERNED AUTHORITIES FOR STAMP DUTY PURPOSE S IS FURTHER EVIDENCED BY RECEIPT (PAPER BOOK PAGE 23) ISSUED BY SUCH AUTHORITY. THE CONSIDERATION OF THE EXPENDITURE IS AVAILABLE AT PAGE 39 OF THE PAPER BOOK ALONG WITH THE EXPENSES O N REGISTRATION (PAPER BOOK PAGES 22 & 23). LIKEWISE, THE PAYMENT OF BROKERAGE OF RS.84,000/- AND OTHER EXPENSES WERE ALSO FILED BY THE ASSESSEE. THE COPY OF THE LEASE DEED (PAGE 5 1 & 52 OF PAPER BOOK) RELATING TO ACQUISITION OF CAPITAL ASSE T BY THE PREVIOUS OWNER FOR THE PURPOSES OF COMPUTING COST O F ACQUISITION U/S 55 (2) (B) (II) OF THE ACT ARE ALSO AVAILABLE ON RECORD TO THE EFFECT THAT THE SUBJECT PROPERTY WAS ACQUIRED BY THE PREVIOUS OWNER NAMELY, SMT. SAVITA BEN CHUDGAR BEFORE 1.4.1981, ALTHOUGH THE LEASE DEEDS WERE EXECUTED ON 1.4.1960. DURING HEARING, IT WAS CLAIMED BY THE LEA RNED COUNSEL FOR THE ASSESSEE THAT SMT. SAVITA BEN STARTED CONST RUCTION ON THE SUBJECTED PLOTS FOR WHICH OUR ATTENTION WAS INV ITED TO PAGES 25 93 TO 97 OF ADDITIONAL PAPER BOOK AS THE PREVIOUS O WNER GOT THE SITE APPROVED ON 19.10.1957 (ADDITIONAL PAPER BOOK PAGE 91) AND OBTAINED PERMISSION FOR CONSTRUCTION FROM INDOR E MUNICIPAL CORPORATION ON 13.11.1957 (PAGE 92 OF ADDITIONAL PA PER BOOK), THE PREVIOUS OWNER CONSTRUCTED THE HOUSE IN THE YEA R 1959 AND MADE A REQUEST FOR ISSUANCE OF COMPLETION CERTIFICA TE VIDE LETTER DATED 19.5.1959 (ADDITIONAL PAPER BOOK PAGE 98), AN D FINALLY THE INDORE MUNICIPAL CORPORATION ISSUED COMPLETION CERTIFICATE IN FAVOUR OF PREVIOUS OWNER ON 9.7.1959 (ADDITIONAL PAPER BOOK PAGE 99), THEREFORE, IT IS CLEAR THAT THE PREVIOUS OWNER CONSTRUCTED THE PROPERTY BEFORE 1.4.1981, CONSEQUEN TLY, THE OBSERVATION OF THE LD. COMMISSIONER CONTAINED IN PA RA 5.1 OF THE IMPUGNED ORDER IS OF NO RELEVANCE. 9. ONCE IT IS ESTABLISHED THAT THE ASSESSEE ACQUIRE D THE PROPERTY FROM PREVIOUS OWNER EVEN ON 6.8.1991 (DATE OF TRANSFER IN SOCIETY RECORD) OR ON 29.7.1992, THE ON LY QUESTION REMAINS WHETHER THE INDEXED COST OF ACQUISITION IS AS PER PROVISO TO SECTION 48 OF THE ACT READ WITH EXPLANA TION. IT IS SEEN THAT AFTER TAKING THE COST OF ALCQUISITION AT RS. 800300/-, 26 THE ASSESSEE APPLIED THE COST OF INFLATION INDEX FO R THE FINANCIAL YEAR 1992-93 IN WHICH SHE HAS BEQUEATHED THE PROPER TY AND ALSO FOR THE FINANCIAL YEAR 2005-06 IN WHICH THE PR OPERTY WAS TRANSFERRED, THEREFORE, THE INDEX COST OF ACQUISITI ON WAS RIGHTLY COMPUTED. SMT. SAVITA BEN CHUDGAR (PREVIOUS OWNER) PASSED AWAY ON 29.7.1992 AND THE SUBJECT PROPERTY GOT VEST ED WITH THE ASSESSEE ON 29.7.1992 (FY 1992-93) AS CLAIMED BY TH E ASSESSEE OR ON 6.8.1991 AS OBSERVED BY THE ASSESSIN G OFFICER, MEANING THEREBY, THE COST INFLATION INDEX, APPLIED BY THE ASSESSEE FOR LATER FY CANNOT BE SAID TO BE PREJUDIC IAL TO THE INTEREST OF THE REVENUE FOR THE REASON THAT THE ASS ESSEE APPLIED COST INFLATION INDEX OF FY 1991-92. OUT OF THE CAPITAL GAIN OF RS.19,52,707/-, THE ASSESSEE CLAIMED DEDUCT ION U/S 54EC OF THE ACT IN RESPECT OF INVESTMENT OF RS.10 L ACS MADE IN SPECIFIED ASSET I.E. BONDS OF RURAL ELECTRIFICATION CORPORATION LIMITED AS THE COPY OF SUCH BONDS WAS ANNEXED WITH THE RETURN OF INCOME AND EVEN HAS NOT BEEN DOUBTED BY THE LD. COMMISSIONER. OUT OF THE REMAINING CAPITAL GAIN, TH E ASSESSEE DEPOSITED RS.6,50,000/- WITH VIJAYA BANK IN ACCORDA NCE WITH 27 CAPITAL GAIN ACCOUNT SCHEME 1988 FOR THE PURPOSE OF CONSTRUCTING THE RESIDENTIAL HOUSE ON A PLOT PURCHA SED ON 29.7.2006 (BEFORE THE DUE DATE OF FILING THE RETURN I.E. 31.7.2006). THE COPY OF THE PURCHASE DEED OF THE PL OT WAS ALSO ANNEXED WITH THE RETURN (PAGES 70 TO 78 OF THE PAPE R BOOK). IN VIEW OF THESE FACTS, THE DECISION FROM HON'BLE BOMB AY HIGH COURT IN GABRIEL INDIA LTD. (203 ITR 101) (BOM) AND HON'BLE JURISDICTIONAL HIGH COURT IN ASSOCIATED FOOD PRODUC TS P. LTD. (2006) 5 ITJ 299 CLEARLY HELD THAT BEFORE INVOKING THE JURISDICTION U/S 263, THE LD. COMMISSIONER IS HAVE TO BE SATISFIED ABOUT THE TWIN CONDITIONS. SO FAR AS THE ARGUMENT O F THE LD. CIT/DR THAT THE ASSESSMENT ORDER IS TOO SHORT, WE A RE NOT AGREEING WITH THIS ASSERTION BECAUSE THE ONLY REQUI REMENT FOR FRAMING THE ASSESSMENT OR PASSING THE ORDER IS THAT WHETHER DUE INQUIRY HAS BEEN MADE AND THE RELEVANT DOCUMENTS/NECESSARY DETAILS ARE CONSIDERED OR NOT. AS DISCUSSED ABOVE, SINCE THE ASSESSMENT WAS FRAMED AF TER MAKING DUE INQUIRIES AND APPRECIATION OF DETAILS AN D ALSO APPLICATION OF MIND, THEREFORE, IT IS NOT NECESSARY THAT ALWAYS A 28 LENGTHY ORDER IS ONLY TO BE PASSED. IT IS NOT THE C ASE THAT THE ASSESSMENT WAS PASSED IN SLIP SHOT MANNER. THE LD. ASSESSING OFFICER, WHILE FRAMING THE ASSESSMENT ALSO PERFORMS THE JUDICIAL FUNCTIONS. THE LD. COMMISSIONER WHILE INVOKING JURI SDICTION U/S 263 ALSO HAS ITS OWN LIMITATION AND THE ORDER CAN B E INTERFERED WITH ONLY WHEN IT IS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE. THE POWERS IN TERMS OF SECTION 263(1) OF THE ACT IS IN THE NATURE OF SUPERVISORY JURISDICTION AND SA ME CAN BE EXERCISED ONLY IF THE TWIN CONDITIONS ARE FULFILLED . AN ORDER OF ASSESSMENT, PASSED BY ITO, THEREFORE, SHOULD NOT BE INTERFERED WITH ONLY BECAUSE ANOTHER VIEW IS POSSIBLE. OUR VIE W IS FORTIFIED BY THE DECISION FROM HONBLE APEX COURT IN CIT VS. GREEN WORLD CORPORATION (2009) 181 TAXMAN 111/314 ITR 81 (SC). THE EXPRESSION PREJUDICIAL TO INTEREST OF REVENUE MUST BE REGARDED AS INVOLVING A CONCEPTION OF FACTS OR ORDE RS WHICH ARE SUBVERSIVE TO THE ADMINISTRATION OF THE REVENUE AND THERE MUST BE GRIEVOUS ERROR IN THE ORDER, WHICH MIGHT SET A B AD TREND OR PATTERN FOR SIMILAR ASSESSMENT. THE SCOPE OF INTERF ERENCE U/S 263 IS NOT TO SET ASIDE MERELY UNFAVOURABLE ORDERS AND BRING TO 29 TAX SOME MORE MONEY INTO THE TREASURY. OUR VIEW IS FURTHER FORTIFIED BY THE DECISION FROM HON'BLE MADRAS HIGH COURT IN VENKETAKRISHANA RICE COMPANY (163 ITR 129) (MAD). ADMITTEDLY, THE ASSESSEE FRAMED IN UNDUE HASTE OR W ITHOUT INQUIRY ARE PREJUDICIAL TO THE INTEREST OF REVENUE AS WAS HELD IN THALIBAI F. JAIN VS. ITO (101 ITR 1) (KAR) AND THE RATIO LAID DOWN IN CIT VS. PUSHPA DEVI (164 ITR 639) (PAT) AND GEE VEE ENTERPRISES VS. ADDL. CIT (99 ITR 375) (DEL). HOWEV ER, THE ASSESSMENT WAS FRAMED AFTER MAKING DUE INQUIRES AND ON APPRECIATION OF VARIOUS DOCUMENTS, THEREFORE, IT CA N BE SAID THAT LD. COMMISSIONER ERRED IN ASSUMING REVISIONAL JURIS DICTION AS THE ASSESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJU DICIAL TO THE INTEREST OF REVENUE ESPECIALLY WHEN ONE OF THE POSS IBLE VIEW WAS TAKEN THAT TOO, ON CONSIDERATION/EXAMINATION OF MATERIAL FILED BY THE ASSESSEE. THEREFORE, THE IMPUGNED ORDE R IS REVERSED. FINALLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED. 30 ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSI ON OF THE HEARING. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21.11.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!