Dhirendra Mahendraprasad Mehra, Jalna V. Pr. Commissioner of Income-tax - 1,

ITA 808/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2004 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 01-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B; S K RASTOGI J AIN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Question of law; Fair market value; Difference of opinion; Change of opinion
• Section: 143(3); 50C; 2(14); 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.807/PN/2015 '% % / ASSESSMENT YEAR : 2010-11 MR. SURENDRA SHRIRANGAPRASAD MEHRA, C/O. M/S. MEHRA & COMPANY, CONGRESS BHAVAN, S.D. ROAD, JALNA 431 203 PAN NO. ABEPM0318C . / APPELLANT V/S PRINCIPAL COMMISSIONER OF INCOME TAX, AURANGABAD . / RESPONDENT . / ITA NO.808/PN/2015 '% % / ASSESSMENT YEAR : 2010-11 MR. DHIRENDRA MAHENDRAPRASAD MEHRA, C/O. M/S. MEHRA & COMPANY, CONGRESS BHAVAN, S.D. ROAD, JALNA 431 203 PAN NO. AJFPM 4688J . / APPELLANT V/S PRINCIPAL COMMISSIONER OF INCOME TAX, AURANGABAD . / RESPONDENT / APPELLANT BY : SHRI J.P. BAIRAGRA / RESPONDENT BY : SHRI S.K. RASTOGI J AIN & B / ORDER / DATE OF HEARING :28.03.2016 / DATE OF PRONOUNCEMENT:22 .04.2016 2 ITA NOS.807 & 808/PN/2015 PER R.K. PANDA, AM : THE ABOVE APPEALS FILED BY THE RESPECTIVE ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 25-03-2015 PASSED U/S.263 BY THE PRINCIPAL CIT-I, AURANGABAD RELATING TO AS SESSMENT YEAR 2010-11. ITA NO.808/PN/2015 (SHRI DHIRENDRA MAHENDRAPRASAD MEHRA) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 18-08-2011 DECLA RING TOTAL INCOME AT RS.12,25,500/-. THE AO COMPLETED THE ASSE SSMENT U/S.143(3) ON 04-03-2013 DETERMINING THE TOTAL INCOME AT RS.78,94,210/-. SUBSEQUENTLY, THE LD.CIT ON VERIFICATION OF T HE RECORD, OBSERVED THAT THE AO HAS WRONGLY ACCEPTED TH E VALUATION U/S.50C(1) OF RS.65,97,200/- AGAINST ASSESSABLE VALUE OF RS.90,20,200/- AS PER READY RECKONER RATE AND THUS THE CAPITAL GAIN OF RS.24,23,000/- HAS BEEN LEFT TO BE ADDED. ACCORDING TO HIM, THE ASSESSEE ALONG WITH MR. SURENDRA S. MEHRA HAD INDIVIDUALLY AND INDEPENDENTLY ACQUIRED THE ANCESTRAL LAND OUT OF SURVEY NOS. 44 AND 45 TO THE EXTENT OF 2 HECTOR 80R BY VIRTUE OF FAMILY SETTLEMENT. THE ABOVE LAND WAS SOLD FOR A CONSIDERA TION OF RS.2,16,15,000/- TO M/S. OM SAI RAM STEEL AND ALLOYS PVT. LTD ., JALNA VIDE SALE DEED NO.990/2010 EXECUTED ON 25-02-2010 BEFORE THE JOINT SUB-REGISTRAR (CLASS-2), JALNA-1. THE AFORESAID LAND IS LOCATED WITHIN THE MUNICIPAL AREA ADJACENT TO THE INDUSTR IAL AREA OF ADDITIONAL MIDC, JALNA AND IS A CAPITAL ASSET WITHIN THE MEA NING OF PROVISIONS OF SECTION 2(14) (III)(B) OF THE I.T. ACT AS IT IS SITU ATED WITHIN 8 KMS FROM THE END OF THE MUNICIPAL LIMIT OF JALNA. 3 ITA NOS.807 & 808/PN/2015 3. ACCORDING TO THE LD.CIT, AS PER THE GOVERNMENT OF MAHARASHTRA READY RECKONER PUBLISHED FOR THE PURPOSE O F VALUATION OF STAMP DUTY THE LAND SOLD BY THE ASSESSEE FALLS WITHIN THE ZONE NO.1.56 FOR WHICH AN AMOUNT OF RS.1,100/- PER SQ .MTR AS STAMP DUTY IS CHARGEABLE AS PER THE PREVAILING RATES FOR THE PERIOD 01-01-2010 TO 31-12-2010. ACCORDINGLY, WHILE EXECUTING T HE SALE DOCUMENT, THE STAMP DUTY AUTHORITIES HAD ASSESSED THE STAMP DUTY PAYABLE BY THE ASSESSEE AND MR. SURENDRA S. MEHRA AT RS.12,97,000/- FOR 47,300 SQ.MTRS. HE NOTED THAT THE STAM P DUTY AUTHORITIES HAVE ASSESSED THE STAMP DUTY PAYABLE FOR TH E AFORESAID LAND COLLECTIVELY INSTEAD OF INDIVIDUALLY EVEN THOUGH THERE A RE TWO DIFFERENT INDEPENDENT OWNERS HAVING 2 DIFFERENT AREAS, SURVE Y NUMBERS AND LOCATION. THEREFORE, THERE IS UNDER STATEMEN T OF FAIR MARKET VALUE FOR THE PURPOSE OF STAMP DUTY. HE NOTED T HAT THE STAMP DUTY AUTHORITIES HAD NOT ASSESSED THE STAMP DUT Y PAYABLE BY TWO DIFFERENT OWNERS AS PER THE NORMS OF GOVERNMENT OF MAHARASHTRA RULES AND READY RECKONER APPLYING THE SLAB RATES IN RESPECT OF LAND SOLD BY THE ASSESSEE. CALCULATION OF ASSES SABLE VALUE ON THE BASIS OF STAMP DUTY PAYABLE IN THE CASE OF MR. DHIRENDRA M. MEHRA, I.E. THE ASSESSEE COMES TO RS.90,20,000/ - AND IN THE CASE OF MR. SURENDRA S. MEHRA IT IS RS.1,76,55,0 00/- HE, THEREFORE, HELD THAT THE TOTAL ASSESSABLE VALUE FOR THE PURPOSE OF STAMP DUTY IN RESPECT OF THE ASSESSEE AND MR. SUREND RA S. MEHRA WORKS OUT TO RS.2,66,75,000/-, I.E. RS.90,20,000/- + RS.1,76,55,000/-. HOWEVER, THE SAME HAS BEEN ASSESSED AT RS.2,16,15,000/-. THUS, THERE IS UNDERSTATEMENT OF FAIR MARK ET VALUE FOR THE PURPOSE OF STAMP DUTY ON BOTH THE CASES WORKS OUT TO RS.50,60,000/-. HE, THEREFORE, ISSUED A NOTICE U/S.263 OF THE I.T.ACT TO THE ASSESSEE ASKING HIM TO EXPLAIN AS TO WHY THE 4 ITA NOS.807 & 808/PN/2015 ASSESSMENT ORDERS SHALL NOT BE SET ASIDE U/S.263 OF THE I.T. ACT SINCE THE ORDER PASSED BY THE AO IS ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. REJECTING THE VARIOUS EXPLA NATIONS GIVEN BY THE ASSESSEE THE LD.CIT ASSUMED JURISDICTION U/ S.263 BY SETTING ASIDE THE ORDER OF THE AO WITH A DIRECTION TO RE- FRAME THE SAME AS PER THE PROVISIONS OF LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. THE RELEVANT OBSERVATION OF THE LD.CIT AT PARA 3.1.1 TO PARA 4 OF THE ORDER READ AS UNDER : 3.1.1 THE SUBMISSIONS OF THE AR OF THE ASSESSEE ARE CONSIDE RED. FROM THE ABOVE SUBMISSIONS OF THE ASSESSEE IT IS CLEAR THAT HE HAS NOT CHALLENGED THE STAMP DUTY VALUATION AS PER THE SHOW CA USE NOTICE ON FACTS. THEREFORE, THERE IS NO DOUBT THAT THE STAMP D UTY VALUATION HAS BEEN UNDERSTATED. TO DETERMINE THE VALUE OF LAND FO R THE PURPOSE OF INCOME, THE PROVISION OF SECTION 50C(1) ARE APPLICABL E, ACCORDING TO WHICH WHERE SALE CONSIDERATION RECEIVED OR ACCRUING A S A RESULT OF THE TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING O R BOTH IN LESS THAN THE VALUE ADOPTED OR ASSESSED (OR ASSESSABLE) W.E.F. 01-20 -2009 SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FU LL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. 3.1.2 FROM THE ABOVE IT IS CLEAR THAT IN SECTION 50C( 1) THE WORD (OR ASSESSABLE) HAS BEEN INSERTED W.E.F 1/10/2009 TO TAKE CA RE OF SUCH CASES. THEREFORE IN THIS CASE THE VALUATION OF THE LA ND FOR THE PURPOSE OF INCOME SHALL BE DETERMINED AS PER THE AMENDED PROV ISIONS OF SEC. 50C(1), BECAUSE THE ASSESSEE HAS SOLD ITS LAND ON 25.02.20 10. HOWEVER, KEEPING IN VIEW ASSESSEES OBJECTION REGARDING REASSESSING THE VALUE BY AN AUTHORITY OTHER THAN THE STAMP DUTY AUTHORITY, I FIND IT FAIR AND JUST. IF THE VALUATION ARRIVED AT AS PER TH E SHOW CAUSE NOTICE IS ENDORSED BY THE STAMP DUTY AUTHORITIES. 3.2 IN VIEW OF THE ABOVE FACTS, THE ISSUE IS RESTORED B ACK TO THE FILE OF A.O. WITH THE DIRECTION TO GET THE COMPUTATION E NDORSED BY THE STAMP DUTY AUTHORITIES AND RE-COMPUTE THE CONSIDERATI ON (VALUE), ACCORDINGLY. 4. THAT BEING SO, THE ASSESSMENT ORDER DATED 21/12/2012 PASSED BY THE ITO WD 3(1) JALNA, U/S.143(3) IS HEREBY SET ASID E ON THE ISSUES REFERRED ABOVE WITH A DIRECTION THAT THE ASSESSMENT ORD ER SHOULD BE REFRAMED AS PER THE PROVISIONS OF LAW AFTER CONSIDERING PROPER FACTS AND SUBMISSIONS OF THE ASSESSEE AND ALSO FOR NECESSARY VERIFIC ATION IN THE LIGHT OF THE OBSERVATIONS MADE ABOVE, AFTER AFFOR DING PROPER OPPORTUNITY TO THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE PRL.CIT THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 5 ITA NOS.807 & 808/PN/2015 1. THE LEARNED CIT -1, AURANGABAD ERRED IN HOLDING THAT ASSESSMENT ORDER PASSED BY AO U/ S . 143(3) ON 04-03-2013 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. THE LD. CIT FURTHER ERRED IN SUBSTITUTING THE SALE VALUE OF PLOT OF LAND U/S.50C ON THE BASIS OF SALE VALUE OF LAND CALC ULATED BY HIM ON THE BASIS OF GOVERNMENT OF MAHARASHTRA'S READY RECKON ER AS AGAINST THE VALUE ADOPTED BY AO ON THE BASIS OF STAMP DUTY VAL UE ASSESSED BY THE STAMP DUTY AUTHORITIES FOR PAYMENT OF STAMP DUTY AS PER PROVISIONS OF SECTION 50C OF THE ACT. 3. THE LD. CIT FURTHER ERRED IN HOLDING THAT PROVISI ONS OF SECTION 50C AFTER THE WORD 'OR ASSESSABLE' INSERTED BY THE FINAN CE ACT, 2009 W.E.F . 01-10-2009 ARE APPLICABLE EVEN IN RESPECT OF SALE DO CUMENT REGISTERED BY PAYING STAMP DUTY ON THE VALUE DETERMIN ED BY STAMP DUTY AUTHORITIES. IT IS SUBMITTED THAT THE WORD 'OR A SSESSAB L E' IS INSERTED TO COVER THE CASES WHERE THE SALE DOCUMENT IS NOT REGISTERED AND THER EFORE VALUE OF PROPERTY AS PER STAMP DUTY AUTHORITIES IS NOT AVAILA BLE. 4. THE LD. CIT FURTHER ERRED IN ADOPTING VALUE OF L AND SOLD BY THE APPELLANT U/S.50C BY CALCULATING IN ITS OWN WAY AS AG AINST VALUE OF SALE AS PER THE REGISTERED SALE DEED WHICH WAS EXAMINED BY T HE AO DURING THE ASSESSMENT PROCEEDINGS AND ADOPTED THE SAME FOR CALCU LATING CAPITAL GAIN . THEREBY, IT IS MERELY CHANGE OF OPINION WHICH IS NOT PERMITTED TO SET ASIDE THE ORDER OF AO U/ S. 263 OF TH E ACT. 5. THE LD. CIT FURTHER ERRED IN PASSING THE ORDER U/S. 263 WHEN THE ASSESSMENT ORDER PASSED BY AO HAD BEEN SUBJECT MATTER OF APPEAL BEFORE CIT(APPEALS), THEREBY NO ORDER CAN BE PASSED U/ S. 263 OF THE ACT . 6. THE APPELLANT CRAVES TO ADD TO, ALTER OR AMEND TH E FOREGOING GROUNDS, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER, AT THE TIME OF HEARING. 5. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED T O THE ACTION OF THE LD.CIT ASSUMING JURISDICTION U/S.263 OF THE I. T. ACT. HE SUBMITTED THAT THE ASSESSEE DURING THE IMPUGNED ASS ESSMENT ORDER HAS SOLD THE ANCESTRAL PROPERTY. FOR THE PURPOS E OF CALCULATING THE LONG TERM CAPITAL GAIN THE ASSESSEE HAD ADO PTED THE COST AS ON 01-04-1981 ON THE BASIS OF A CERTIFICATE ISSUE D BY GOVERNMENT APPROVED VALUER. SINCE THE FAIR MARKET VALUE OF THE CAPITAL ASSET APPEARED TO BE MORE THE AO REFERRED THE MATTER TO THE DVO AND AFTER CONSIDERING THE REPORT OF THE DVO THE AO 6 ITA NOS.807 & 808/PN/2015 DETERMINED THE LONG TERM CAPITAL GAIN AT RS.74,65,752/- AS PER THE DISCUSSION BY HIM FROM PARA 3 TO 8 OF THE ASSESSMENT ORDER. 6. REFERRING TO THE PROVISIONS OF SECTION 55A OF THE INCOME TAX ACT, 1961 THE LD. COUNSEL FOR THE ASSESSEE DREW THE AT TENTION OF THE BENCH TO CLAUSE (A) OF THE SAID SECTION ACCORDING TO WHICH THE AO CAN REFER THE MATTER TO THE VALUATION OFFICER IN CASE H E IS OF THE OPINION THAT THE VALUE SO CLAIMED BY THE ASSESSEE IS AT V ARIANCE WITH ITS FAIR MARKET VALUE. HE SUBMITTED THAT THE SAID CLAU SE HAS BEEN INSERTED W.E.F. 01-07-2012 WHICH IS EFFECTIVE FROM A.Y. 2 013- 14. EARLIER, THE AO COULD HAVE REFERRED THE MATTER TO TH E DVO ONLY IF SUCH VALUE IS LESS THAN THE FAIR MARKET VALUE. 7. REFERRING TO THE EXPLANATORY NOTES TO THE PROVISIONS O F THE FINANCE (NO.2) ACT, 2009 THE LD. COUNSEL FOR THE ASSESSEE D REW THE ATTENTION OF THE BENCH TO THE FOLLOWING PORTION OF THE CB DT CIRCULAR NO.5/2010 DATED 03-06-2010 : 23. PROVISIONS FOR DEEMED VALUATION IN CERTAIN CASES OF TRANSFER. 23.1 THE EXISTING PROVISIONS OF SECTION 50C PROVIDE THA T WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS T HAN THE VALUE ADOPTED OR ASSESSED BY AN AUTHORITY OF A STATE GOVERNME NT (STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF ST AMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION RECEIVE D OR ACCRUING AS A RESULT OF SUCH TRANSFER FOR COMPUTING CAPITAL GAIN. HOWEVER, THE PRESENT SCOPE OF THE PROVISIONS DOES NOT IN CLUDE TRANSACTIONS WHICH ARE NOT REGISTERED WITH STAMP DUTY V ALUATION AUTHORITY, AND EXECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTORNEY. 23.2 WITH A VIEW TO PREVENTING THE LEAKAGE OF REVEN UE, SECTION 50C IS AMENDED, SO AS TO PROVIDE THAT WHERE THE CONSIDERATI ON RECEIVED OR ACCRUED AS A RESULT OF TRANSFER OF A CAPITAL ASSET, BEI NG LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSAB LE BY AN AUTHORITY OF STATE GOVERNMENT FOR THE PURPOSE OF PA YMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL BE DEEMED TO BE THE FULL VALUE OF CONSID ERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER FOR COMPUTING CAPITAL GAIN. 7 ITA NOS.807 & 808/PN/2015 23.3 FURTHER, EXPLANATION 2 HAS BEEN INSERTED IN THE SUB-SECTION (2) OF THE SECTION 50C, SO AS TO CLARIFY THE MEANING OF TH E TERM ASSESSABLE. 23.4 APPLICABILITY THESE AMENDMENTS HAVE BEEN MADE APPLICABLE WITH EFFECT FROM IST OCTOBER, 2009 AND WILL ACCORDIN GLY APPLY IN RELATION TO TRANSACTIONS UNDERTAKEN ON OR AFTER SUCH D ATE. 8. REFERRING TO THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. R. SUGANTHA RAVINDRAN REPORTED IN 352 ITR 488 THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE B ENCH TO THE FOLLOWING OBSERVATION OF THE HONBLE HIGH COURT (SHORT NOTES) : THE INSERTION OF THE WORDS OR ASSESSABLE IN SECTION 50C OF THE INCOME-TAX ACT, 1961, WITH EFFECT FROM OCTOBER 1, 2 009, IS NEITHER A CLARIFICATION NOR AN EXPLANATION TO THE EXISTING PRO VISION AND IT IS ONLY AN INCLUSION OF NEW CLASS OF TRANSACTIONS, NAMELY, THE T RANSFER OF PROPERTIES WITHOUT OR BEFORE REGISTRATION. BEFORE TH E AMENDMENT, ONLY TRANSFER OF PROPERTIES WHERE THE VALUE WAS ADOPTE D OR ASSESSED BY THE STAMP VALUATION AUTHORITY WERE SUBJECTED TO SEC TION 50C APPLICATION. HOWEVER, AFTER INTRODUCTION OF THE WO RDS OR ASSESSABLE SUCH TRANSFERS WHERE THE VALUE IS ASSESSABLE BY THE VALUATI ON AUTHORITY ARE ALSO BROUGHT INTO THE AMBIT OF SECTION 50C. THUS, SUCH INTRODUCTION OF A NEW SET OF CLASS OF TRANSFER WOULD CE RTAINLY HAVE PROSPECTIVE APPLICATION ONLY. IN CIRCULAR NO. 5 OF 2010, DATED JUNE 3, 2010, ISSUED BY THE BOARD, IT IS MADE CLEAR THAT THE A MENDMENT MADE BY THE FINANCE (NO.2) ACT, 2009, IS PROSPECTIVE IN NA TURE AND CANNOT BE APPLIED RETROSPECTIVELY. SO IT IS STATED THEREIN T HAT THE SCOPE OF THE PROVISIONS DOES NOT INCLUDE TRANSACTIONS WHICH ARE NOT R EGISTERED WITH THE STAMP DUTY VALUATION AUTHORITY AND EXECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTORNEY. CONSEQUENTLY , THE AMENDMENTS HAVE BEEN MADE APPLICABLE WITH EFFECT FRO M OCTOBER 1, 2009 AND WILL APPLY ONLY IN RELATION TO TRANSACTIONS UNDERTAKEN ON OR AFTER SUCH DATE. HE ACCORDINGLY SUBMITTED THAT THE LD.CIT HAS MISCONSTR UED THE WORD ASSESSABLE WHICH IS APPLICABLE TO TRANSFER OF PROPER TIES WITHOUT OR BEFORE REGISTRATION. 9. IN HIS ALTERNATE ARGUMENT THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT AGAINST THE ORDER OF THE AO THE ASSESSE E PREFERRED AN APPEAL BEFORE THE LD.CIT(A) WHO VIDE ORDER DATED 31-07 -2014 HAS DECIDED THE ISSUE CONSIDERING THE REFERENCE MADE BY THE AO FOR DETERMINATION OF THE FAIR MARKET VALUE OF THE PROPERTY TO THE DVO 8 ITA NOS.807 & 808/PN/2015 U/S.55A OF THE ACT AND THEREBY HAS DELETED THE ADDITION OF RS.66,68,712/- MADE BY THE AO. THEREFORE, ONCE THE ISSUE IS A SUBJECT MATTER OF APPEAL BEFORE THE CIT(A) THE DOCTRINE O F MERGER APPLIES AND THE CIT LOSES HIS POWER TO INVOKE JURISDICTION U/S.263. 10. IN HIS THIRD PLANK OF ARGUMENT THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE ALLEGAT ION OF THE LD.CIT THAT THE ASSESSABLE VALUE WORKS OUT TO RS.1,76,55 ,000/- AS AGAINST ASSESSED VALUE OF RS.1,50,17,800/- DECLARED BY THE ASSESSEE. HE SUBMITTED THAT ALTHOUGH IT WAS EXPLAINED BEFORE THE LD.CIT THAT AN AMOUNT OF RS.12,97,000/- HAS BEEN PAID TOW ARDS THE STAMP DUTY FOR THE REGISTRATION WHICH WAS ACCEPTED BY THE JOINT SUB-REGISTRAR (CLASS 2), JALNA AND NO ADDITIONAL DEMAND O N ACCOUNT OF STAMP DUTY/ADDITIONAL DUTY HAS EVER BEEN RAIS ED BY THE SUB-REGISTRAR, JALNA OR ANY OTHER STATE GOVERNMENT AUTH ORITY THOUGH A PERIOD OF MORE THAN 5 YEARS HAS ELAPSED FROM T HE DATE OF EXECUTION FOR WHICH THE VALUE ADOPTED BY THE SUB-REGISTR AR AT RS.2,16,15,000/- IS CORRECT AND NEED NO FURTHER INTERFERENC E, THE LD.CIT, WITHOUT ANY EVIDENCE AT HIS DISPOSAL RESTORED THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO GET THE COMPUTATIO N ENDORSED BY THE STAMP DUTY AUTHORITIES AND RECOMPUTE THE CONSID ERATION. HE SUBMITTED THAT IT IS ONLY A CHANGE OF OPINION AND THE ACTION OF THE CIT IS NOT AT ALL PERMISSIBLE IN ABSENCE OF ANY EVIDENC E AT HIS DISPOSAL. HE ACCORDINGLY SUBMITTED THAT ON ALL COUNTS ASS UMPTION OF JURISDICTION BY THE CIT U/S.263 IS ILLEGAL AND HAS TO BE SET ASIDE. 11. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE CIT. HE SUBMITTED TH AT THE THEORY OF DOCTRINE OF MERGER IS NOT APPLICABLE TO THE FACT S OF THE PRESENT CASE SINCE THE ISSUE BEFORE THE LD.CIT(A) WAS COS T OF 9 ITA NOS.807 & 808/PN/2015 ACQUISITION AND SALE CONSIDERATION WAS NOT THE ISSUE BEFOR E THE LD.CIT(A). THEREFORE, THE ARGUMENT OF THE LD. COUNSEL FOR TH E ASSESSEE REGARDING THEORY OF MERGER IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. HE SUBMITTED THAT THE LD.CITS ORD ER IS BASED ON FACTS WHICH THE AO WHILE PASSING THE ORDER HAS NOT CONS IDERED, THEREFORE, THE ASSUMPTION OF JURISDICTION BY THE LD.CIT IS JUSTIFIED. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSID ERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE ALONG WITH MR. SURENDRA S. MEHRA HAD SOLD A PIECE OF LAND FOR A CONSIDERATION OF RS.2,16,15,000/-. WE FIND THE LD.CI T WAS OF THE OPINION THAT THE ASSESSABLE VALUE OF THE PROPE RTY TRANSFERRED ON THE BASIS OF THE STAMP DUTY PAYABLE AS P ER GOVERNMENTS READY RECKONER IS RS.2,66,75,000/- FOR THE EN TIRE LAND. THUS, THERE IS UNDER ASSESSMENT OF FAIR MARKET VALUE FOR THE PURPOSE OF SECTION 50C OF THE ACT AMOUNTING TO RS.50,60,00 0/- IN CASE OF LAND SOLD BY THE ASSESSEE AND SHRI SURENDRA S. M EHTA, THE DETAILS OF WHICH ARE AS UNDER : SR.NO. NAME OF THE ASSESSEE AREA COVERED IN SALE DEED IN SQUARE METER AMOUNT OF STAMP DUTY PAYABLE ASSESSED BY THE STAMP DUTY AUTHORITIES AMOUNT OF STAMP DUTY ASSESSABLE AS PER THE GOVERNMENTS READY RECKONER DIFFERENCE, I.E. UNDER ASSESSMENT OF FAIR MARKET VALUE FOR THE PURPOSE OF SECTION 50C OF THE ACT 01 02 03 04 05 06 01 SHRI DHIRENDRA MAHENDRA PRASAD MEHRA 1 HECTOR 23R=12,300 SQUARE METER RS.65,97,200/ - RS.90,20,200/ - RS.24,23,000/ - 02 SHRI SURENDRA SRIRANGPRASAD MEHRA 2 HECTOR 80R = 28,800 SQUARE METER RS.1,50,17,800/ - RS.1,76,55,000/ - RS.26,37,200/ - RS.2,16,15,000/ - RS.2,66,75,000/ - RS.50,60,000/ - 10 ITA NOS.807 & 808/PN/2015 13. ALTHOUGH THE ASSESSEE HAD STATED BEFORE THE LD.CIT THAT THE CONSIDERATION RECEIVED BY HIM FOR TRANSFER OF THE LAND HAS BEEN ACCEPTED BY THE SUB-REGISTRAR, JALNA FOR EXECUTING THE RE GISTRATION AND NO ADDITIONAL DEMAND ON ACCOUNT OF STAMP DUTY/ADDITIO NAL STAMP DUTY HAS BEEN RAISED, WE FIND THE LD.CIT WITHOUT AN Y EVIDENCE AT HIS DISPOSAL REJECTED THE AFORESAID EXPLANATION AND SET ASIDE THE ORDER U/S.263 BY GIVING A DIRECTION TO THE AO TO GET THE COMPUTATION ENDORSED BY THE STAMP DUTY AUTHORITIES AN D RECOMPUTE THE CONSIDERATION. 14. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSE SSEE THAT IN ABSENCE OF ANY MATERIAL BEFORE THE LD.CIT THAT ASSESSA BLE VALUE IS MORE THAN THE ASSESSED VALUE THE LD.CIT HAS INVOKED JURISDICTION. FURTHER, THE LD.CIT HAS MISCONSTRUED THE WO RD ASSESSABLE WHICH IS APPLICABLE ONLY TO CASES OF TRANSFER OF PROPERTIES WITHOUT OR BEFORE REGISTRATION. 15. WE FIND MERIT IN THE ABOVE ARGUMENTS OF THE LD. COUNS EL FOR THE ASSESSEE. THE PROVISIONS OF SUB-SECTION(1) OF SECTION 5 0C READ AS UNDER : 50C (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, B EING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSE SSED [OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HER EAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY ) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, T HE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERAT ION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. 16. WE FIND THE CBDT VIDE CIRCULAR NO.5/1010 DATED 03-06- 2010 IN THE EXPLANATORY NOTES TO THE PROVISIONS OF FINANC E ACT (NO2S) ACT, 2009 HAS EXPLAINED THE REASONS FOR INSERTION O F THE WORD ASSESSABLE WHICH HAS ALREADY BEEN REPRODUCED AT PARA 7 OF THIS ORDER. 11 ITA NOS.807 & 808/PN/2015 17. WE FIND THE HONBLE MADRAS HIGH COURT IN THE CASE O F R. SUGANTHA RAVINDRAN (SUPRA) AFTER CONSIDERING THE ABOVE CIR CULAR HAS OBSERVED AS UNDER : 8. WE HAVE PERUSED THE ABOVE CIRCULAR. IT IS STATED T HEREIN THAT THE SCOPE OF THE PROVISIONS DOES NOT INCLUDE TRANSACTION WHICH ARE NOT REGISTERED WITH STAMP DUTY VALUATION AUTHORITY AND EX ECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTORNEY. CONSEQUENTLY, IT IS MADE CLEAR THEREIN THAT THE AMENDMENTS HAVE BEEN MADE APPLICABL E WITH EFFECT FROM 01.10.2009 AND THEREFORE, THEY WILL APPLY ONLY IN RELATION TO TRANSACTION UNDERTAKEN ON OR AFTER SUCH DATE. THE REL EVANT PORTION OF THE CIRCULAR IS EXTRACTED HEREUNDER: '23.4. APPLICABILITY:- THESE AMENDMENTS HAVE BEEN MAD E APPLICABLE WITH EFFECT FROM 1ST OCTOBER, 2009 AND WI LL ACCORDINGLY, APPLY IN RELATION TO TRANSACTIONS UNDERT AKEN ON OR AFTER SUCH DATE.' 9. LEARNED COUNSEL FOR THE REVENUE IS NOT DISPUTING AB OUT THE EXISTENCE OF SUCH CIRCULAR ISSUED BY THE BOARD. IF THE BOARD HAS ISSUED A CIRCULAR CLARIFYING THE APPLICABILITY OF SECTION 50C IN PURSUANCE OF THE AMENDMENT MADE BY AMENDMENT ACT 2 OF 2009, WE F AIL TO UNDERSTAND AS TO HOW THE REVENUE CAN CANVASS THE SAME I SSUE IN THIS CASE WHICH IN EFFECT IS AGAINST THE CIRCULAR ISSUED BY T HE BOARD. CERTAINLY, THE REVENUE IS BOUND BY THE CIRCULAR ISSUED BY THE BOARD. AT THIS JUNCTURE, IT IS PERTINENT TO NOTE THAT IN A DECI SION MADE IN THE CASE OF STATE OF TAMIL NADU AND ANOTHER VS. INDIA CEMENTS LTD. AND ANOTHER REPORTED IN (2011) 40 VST 225 (SC), THE HONOURABLE SUPREME COURT HAS HELD THAT THE CIRCULARS ISSUED BY THE REVENUE ARE B INDING ON THE DEPARTMENT AND THEREFORE, THEY CANNOT REPUDIATE THA T THEY ARE INCONSISTENT WITH THE STATUTORY PROVISIONS. RELEVANT PAR AGRAPHS 21 AND 22 ARE EXTRACTED HEREUNDER: '21. IT IS MANIFEST FROM THE HIGHLIGHTED PORTION OF T HE CIRCULAR THAT AS PER THE CLARIFICATION ISSUED BY THE COMMISSIONER OF COMMERCIAL TAXES, IN EXERCISE OF THE PO WER CONFERRED ON HIM UNDER SECTION 28A OF THE TNGST ACT , THE BENEFIT OF THE SALES TAX DEFERRAL SCHEME WOULD BE AVA ILABLE TO A DEALER FROM THE DATE OF REACHING OF BPV OR BSV, WHI CHEVER IS EARLIER, AS IS PLEADED ON BEHALF OF THE FIRST RESPONDEN T. IT IS TRITE LAW THAT CIRCULARS ISSUED BY THE REVENUE ARE BINDING O N THE DEPARTMENTAL AUTHORITIES AND THEY CANNOT BE PERMITTE D TO REPUDIATE THE SAME ON THE PLEA THAT IT IS INCONSISTENT WITH THE STATUTORY PROVISIONS OR IT MITIGATES THE RIGOUR OF THE LAW. 22. IN PAPER PRODUCTS LTD. VS. COMMISSIONER OF CENTRAL EXCISE ((2001) 247 ITR 128 SC: (1999) 7 SCC 84), WHI LE INTERPRETING SECTION 37B OF THE CENTRAL EXCISE ACT, 1944, WHICH IS IN PARI MATERIA WITH SECTION 28A OF THE TNGST ACT , THIS COURT HAD HELD THAT THE CIRCULARS ISSUED BY THE CENTRAL BOAR D OF EXCISE AND CUSTOMS ARE BINDING ON THE DEPARTMENT AND T HE DEPARTMENT IS PRECLUDED FROM CHALLENGING THE CORRECT NESS OF THE SAID CIRCULARS, EVEN ON THE GROUND OF THE SAME BEI NG INCONSISTENT WITH THE STATUTORY PROVISION. IT WAS FURTH ER HELD THAT THE DEPARTMENT IS PRECLUDED FROM THE RIGHT TO F ILE AN 12 ITA NOS.807 & 808/PN/2015 APPEAL AGAINST THE CORRECTNESS OF THE BINDING NATURE O F THE CIRCULARS AND THE DEPARTMENT'S ACTION HAS TO BE CONSIST ENT WITH THE CIRCULAR WHICH IS IN FORCE AT THE RELEVANT POINT OF TIME.' 10. EVEN OTHERWISE, WE ARE OF THE FIRM VIEW THAT THE INSERTION OF WORDS 'OR ASSESSABLE' BY AMENDING SECTION 50C WITH EFFE CT FROM 01.10.2009 IS NEITHER A CLARIFICATION NOR AN EXPLANA TION TO THE ALREADY EXISTING PROVISION AND IT IS ONLY AN INCLUSION OF NEW C LASS OF TRANSACTIONS NAMELY THE TRANSFERS OF PROPERTIES WITHOUT OR BEFORE REGISTRATION. BEFORE INTRODUCING THE SAID AMENDMENT, ONLY THE TRANSFERS OF PROPERTIES WHERE THE VALUE ADOPTED OR ASSESSE D BY THE STAMP VALUATION AUTHORITY WERE SUBJECTED TO SECTION 5 0C APPLICATION. HOWEVER AFTER INTRODUCTION OF THE WORDS 'OR ASSESSABLE' AFTER THE WORDS 'ADOPTED OR ASSESSED', SUCH TRANSFERS WHERE THE VALU E ASSESSABLE BY THE STAMP VALUATION AUTHORITY ARE ALSO BROU GHT INTO THE AMBIT OF SECTION 50C. THUS SUCH INTRODUCTION OF NEW SE T OF CLASS OF TRANSFER WOULD CERTAINLY HAVE THE PROSPECTIVE APPLICA TION ONLY AND NOT OTHERWISE. HENCE THE ASSESSEE'S TRANSFER ADMITTEDLY MADE E ARLIER TO SUCH AMENDMENT CANNOT BE BROUGHT UNDER SECTION 50C. 11. APPLYING THE ABOVE SAID DECISION OF THE HONOURABL E APEX COURT TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS BY CONSIDERING THE SCOPE OF SECTION 50C, WE HOLD THAT THE REVENUE IS NOT ENTITLED TO CANVASS THE CORRECTNESS OF THE ORDER PASSED BY THE TRIBU NAL, MORE PARTICULARLY IN THE LIGHT OF THE CIRCULAR ISSUED BY T HE BOARD. ACCORDINGLY, THE TAX CASE APPEAL IS DISMISSED AND THE SUB STANTIAL QUESTION OF LAW IS ANSWERED AGAINST THE REVENUE. NO COST S. 18. FROM THE ABOVE, IT IS CLEAR THAT THE INSERTION OF THE WORDS OR ASSESSABLE U/S.50C OF THE I.T. ACT, 1961 W.E.F. 01-10-2009 IS NEITHER A CLARIFICATION NOR AN EXPLANATION TO THE EXISTING PR OVISION AND IT IS ONLY AN INCLUSION OF NEW CLASS OF TRANSACTION NAME LY, THE TRANSFER OF PROPERTIES WITHOUT OR BEFORE REGISTRATION. 19. WE FURTHER FIND THE ASSESSEE DURING THE COURSE OF HEA RING BEFORE THE LD.CIT INTER-ALIA HAD GIVEN THE FOLLOWING REPLY : 4) THE CONSIDERATION RECEIVED BY ME ON THE SALE OF T HE SAID LAND IS RS.88,65,000/- AND MY SHARE OF THE VALUE OF THE SAID PROPERTY ACCEPTED BY THE SUB-REGISTRAR-II, JALNA FOR EXECUTIN G THE REGISTRATION IS ALSO RS88,65,000/- AND THE SAME HAS BEEN ACCEPTED AND N O ADDITIONAL DEMAND ON ACCOUNT OF STAMP DUTY/ADDITIONAL STAMP DUTY HAS BEEN RAISED. THE FULL VALUE OF CONSIDERATION FOR THE PURP OSES OF SECTION 48, DECLARED BY ME HAS BEEN RIGHTLY ASSESSED TO TAX BY THE A O. IT IS ALLEGED THAT MY SHARE OF ASSESSABLE VALUE FOR THE PURPOSE OF STAMP DUTY (AS PER THE TABLE, PAGE 3 OF THE NOTICE) IS RS.9 0,20,000/- I HAVE DECLARED MY SALES CONSIDERATION IN MY RETURNED INCOME AT RS.88,65,000/-. THE DIFFERENCE IN ARITHMETIC COMPUT ATION OF ASSESSABLE VALUE AND ASSESSED SALES VALUE IS RS.1,55,000/- AND NOT RS.24,23,000/- AS ALLEGED IN THE NOTICE. 13 ITA NOS.807 & 808/PN/2015 20. NOTHING HAS BEEN BROUGHT ON RECORD THAT THE LD.CI T HAD SOME MATERIAL BEFORE HIM THAT THE ASSESSABLE VALUE IS MORE AND THAT THE STAMP VALUATION AUTHORITIES HAVE RAISED ADDITIONA L DEMAND ON ACCOUNT OF STAMP DUTY/ADDITIONAL STAMP DUTY T ILL THE DATE OF PASSING OF THE ORDER ALTHOUGH SUBSTANTIAL TIME HAS ELAPSED FROM THE DATE OF REGISTRATION (25-02-2010) AND PASSING OF T HE ORDER U/S.263 (25-03-2015). 21. THE HONBLE SUPREME COURT IN THE CASE OF MALABAR IN DUSTRIAL COMPANY LTD. VS. CIT REPORTED IN 243 ITR HAS HELD AS UNDER (SHORT NOTES) : A BARE READING OF PROVISIONS OF SECTION 263 MAKES IT C LEAR THAT THE PERQUISITE TO EXERCISE JURISDICTION BY THE CIT SUO MOT U UNDER IT, IS THAT THE ORDER OF THE ITO IS ERRONEOUS INSOFAR AS IT IS PREJ UDICIAL TO THE INTERESTS OF THE REVENUE. THE CIT HAS TO BE SATISFIED O F TWIN CONDITIONS, NAMELY (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT IF THE ORDER OF THE ITO IS ERR ONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOU S BUT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SECTION 263(1 ). THERE CAN BE NO DOUBT THAT THE PROVISION CANNOT BE INVOKED TO COR RECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE AO; IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. 22. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . GABRIEL INDIA LTD. REPORTED IN 203 ITR 108 HAS HELD AS UN DER (SHORT NOTES) : REVISION SCOPE ORDER SOUGHT TO BE REVISED MUST BE ERRONEOUS AND ALSO BY VIRTUE OF ITS BEING ERRONEOUS PREJUDICE MUST HA VE BEEN CAUSED TO INTERESTS OF THE REVENUE SECTION 263 DOES NOT VISU ALIZE SUBSTITUTION OF JUDGMENT OF COMMISSIONER FOR THAT OF IT O, UNLESS THE DECISION IS HELD TO BE ERRONEOUS ORDER IS ERRONEOUS WH EN IT IS NOT IN ACCORDANCE WITH LAW AND IS PREJUDICIAL WHEN IT HAS CA USED LOSS OF REVENUE THERE MUST BE MATERIAL BEFORE THE COMMISSION ER TO SATISFY HIM, PRIMA-FACIE, THAT THE TWO REQUISITES ARE PRESENT POWER CANNOT BE EXERCISED AT THE WHIMS AND CAPRICE OF COMMISSIONER. 14 ITA NOS.807 & 808/PN/2015 23. IN VIEW OF OUR ABOVE DISCUSSION AND FOLLOWING THE DEC ISIONS CITED (SUPRA) AND IN ABSENCE OF ANY MATERIAL BEFORE THE LD.C IT THAT THE REVENUE AUTHORITIES HAVE RAISED ADDITIONAL DEMAND ON ACCOUNT OF STAMP DUTY/ADDITIONAL STAMP DUTY AFTER A LAPSE OF MORE THAN 5 YEARS THE ORDER OF THE CIT SETTING ASIDE THE ASSESSMENT TO THE FILE O F THE AO, IN OUR OPINION, IS NOT IN ACCORDANCE WITH LAW. IN O UR OPINION, THE CIT CANNOT SET ASIDE THE ORDER TO THE FILE OF THE AO TO MAKE PHISHING AND ROVING ENQUIRIES. WE THEREFORE QUASH TH E ORDER PASSED U/S.263 BY THE LD.CIT AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. ITA NO.807/PN/2015 (SHRI SURENDRA SHRIRANGAPRASAD ME HRA) : 24. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. THE LEARNED CIT-1, AURANGABAD ERRED IN HOLDING THAT ASSESSMENT ORDER PASSED BY AO U/S . 143(3) ON 04-03-2013 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. THE LD. CIT FURTHER ERRED IN SUBSTITUTING THE SALE VALUE OF PLOT OF LAND U/S.50C ON THE BASIS OF SALE VALUE OF LAND CALC ULATED BY HIM ON THE BASIS OF GOVERNMENT OF MAHARASHTRA'S READY RECKON ER AS AGAINST THE VALUE ADOPTED BY AO ON THE BASIS OF STAMP DUTY VAL UE ASSESSED BY THE STAMP DUTY AUTHORITIES FOR PAYMENT OF STAMP DUTY AS PER PROVISIONS OF SECTION 50C OF THE ACT. 3. THE LD. CIT FURTHER ERRED IN HOLDING THAT PROVISI ONS OF SECTION 50C AFTER THE WORD 'OR ASSESSABLE' INSERTED BY THE FINAN CE ACT, 2009 W.E.F . 01-10-2009 ARE APPLICABLE EVEN IN RESPECT OF SALE DO CUMENT REGISTERED BY PAYING STAMP DUTY ON THE VALUE DETERMIN ED BY STAMP DUTY AUTHORITIES. IT IS SUBMITTED THAT THE WORD 'OR A SSESSAB L E' IS INSERTED TO COVER THE CASES WHERE THE SALE DOCUMENT IS NOT REGISTERED AND THER EFORE VALUE OF PROPERTY AS PER STAMP DUTY AUTHORITIES IS NOT AVAILA BLE. 4. THE LD. CIT FURTHER ERRED IN ADOPTING VALUE OF L AND SOLD BY THE APPELLANT U/S.50C BY CALCULATING IN ITS OWN WAY AS AG AINST VALUE OF SALE AS PER THE REGISTERED SALE DEED WHICH WAS EXAMINED BY T HE AO DURING THE ASSESSMENT PROCEEDINGS AND ADOPTED THE SAME FOR CALCU LATING CAPITAL GAIN . THEREBY, IT IS MERELY CHANGE OF OPINION WHICH IS NOT PERMITTED TO SET ASIDE THE ORDER OF AO U/S. 263 OF THE ACT. 5. THE LD. CIT FURTHER ERRED IN PASSING THE ORDER U/S. 263 WHEN THE ASSESSMENT ORDER PASSED BY AO HAD BEEN SUBJECT MATTER OF APPEAL BEFORE CIT(APPEALS), THEREBY NO ORDER CAN BE PASSED U/ S. 263 OF THE ACT . 15 ITA NOS.807 & 808/PN/2015 6. THE APPELLANT CRAVES TO ADD TO, ALTER OR AMEND TH E FOREGOING GROUNDS, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER, AT THE TIME OF HEARING. 25. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUNDS RAIS ED BY THE ASSESSEE IN THE ABOVE APPEAL ARE IDENTICAL TO THE GR OUNDS RAISED IN ITA NO.808/PN/2015. WE HAVE ALREADY DECIDED TH E ISSUE AND THE APPEAL FILED BY THE ASSESSEE HAS BEEN ALLOWED. FO LLOWING THE SAME REASONINGS THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 26. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22-04-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 22 ND APRIL, 2016 ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. % ( ) , / THE CIT(A), KOLHAPUR 4. % / THE CIT, KOLHAPUR 5 . 6. ( ++,, ,, / DR, ITAT, A PUNE; 1 / GUARD FILE. / BY ORDER , ( + //// // TRUE COPY // ( + //TRUE COPY// 34 + , / SR. PRIVATE SECRETARY ,, / ITAT, PUNE