Bhangire Kamalabai Ramlal, Sangamner V. Commissioner of Income-tax - I,

ITA 869/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1105 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Business income; Principle of natural justice; Date of conversion; Fair market value; Assessment record
• Section: 45(2); 143(3); 263; 63; 139

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.869/PN/2014 ASSESSMENT YEAR : 2005-06 BHANGIRE KAMALABAI RAMLAL, 2198, JAY BHARAT CHOWK, NEAR PETIT HIGH SCHOOL, SANGAMNER, DIST. AHMEDNAGAR. PAN : AUZPB4083H . APPELLANT VS. THE INCOME TAX OFFICER, WARD 4, AHMEDNAGAR. . RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPONDENT BY : SHRI S. K. RASTOGI, CIT / DATE OF HEARING : 30.09.2015 / DATE OF PRONOUNCEMENT: 30.09.2015 % / ORDER PER PRADIP KUMAR KEDIA, AM : THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX-I, PUNE (IN SHORT THE C OMMISSIONER) DATED 25.03.2013 RELATING TO ASSESSMENT YEAR 2005-06 PASS ED UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRED IN PASSING THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING APPELLANTS CONTE NTION IN THIS REGARD. THE APPELLANT CRAVES FOR TO LEAVE, ADD, ALTER, MODI FY, DELETE ABOVE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING, IN THE INTEREST O F NATURAL JUSTICE. 3. THE FACTS, IN BRIEF, ARE THAT FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSEE DID NOT ORIGINALLY FILE ANY RETURN OF INCOME VOLUNT ARILY UNDER SECTION 139 OF THE 2 ITA NO.869/PN/2014 ACT. SUBSEQUENTLY, DURING THE COURSE OF THE SCRUTI NY PROCEEDINGS FOR ASSESSMENT YEAR 2006-07 IN THE CASE OF SHRI ASHISH BHANGIRE, SON OF THE ASSESSEE, IT WAS NOTICED BY THE ASSESSING OFFICER T HAT THE ASSESSEE HAD SOLD CERTAIN PLOTS IN THE PRECEDING PREVIOUS YEAR RELEVA NT TO THE ASSESSMENT YEAR 2005-06. THE TOTAL CONSIDERATION RECEIVED BY HER O N SUCH SALES WAS RS.12,98,400/-. ON THE BASIS OF THE AFORESAID INFO RMATION, THE ASSESSING OFFICER REOPENED THE ASSESSMENT OF THE ASSESSEE. I N RESPONSE TO THE NOTICE UNDER SECTION 147/148 OF THE ACT, THE ASSESSEE FILE D RETURN OF INCOME DECLARING THEREIN LONG TERM CAPITAL GAINS OF RS.7,92,404/-. THE RE-ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) R.W.S. 147 OF THE AC T VIDE ORDER DATED 29.11.2010, ACCEPTING THE RETURNED INCOME. THIS OR DER OF THE ASSESSING OFFICER IS SUBJECT-MATTER OF ACTION UNDER SECTION 2 63 OF THE ACT BY THE COMMISSIONER. 4. ON SUBSEQUENT EXAMINATION OF RECORDS, IT WAS NOT ICED BY THE COMMISSIONER THAT THE ASSESSEE HAD CONVERTED HER AG RICULTURAL LAND INTO NON- AGRICULTURAL LAND AND THEN HAD SOLD THE SAME TO SIX PARTIES AFTER CONVERTING IT INTO PLOTS. THE COMMISSIONER WAS OF THE VIEW THAT SALE OF LAND AFTER PLOTTING IS A BUSINESS VENTURE. ACCORDINGLY, IN THE OPINION OF THE COMMISSIONER, THE ASSESSING OFFICER OUGHT TO HAVE ASSESSED THE INCOME ARISING TO THE ASSESSEE ON THE SALE OF PLOTS UNDER THE HEAD BUSINESS INCOME INSTEAD OF ASSESSING THE SAME UNDER THE HEAD CAPITAL GAINS. THE COMMISSIO NER OBSERVED THAT THE ASSESSING OFFICER COMMITTED ERROR IN MAKING THE ASS ESSMENT OF THE INCOME UNDER THE ROUND HEAD. HE ALLEGED THAT THIS ASPECT OF TAXABILITY INCOME ARISING FROM SALE OF PLOTS UNDER THE HEAD BUSINESS INCOME DID NOT CROSS THE MIND OF THE ASSESSING OFFICER AT ALL, SINCE NO QUERY HAS BE EN RAISED ABOUT THE HEAD OF INCOME AT ALL. THE COMMISSIONER OBSERVED THAT SUCH INCOME ALSO GOT UNDER ASSESSED WHICH HAS RESULTED IN A REVENUE LOSS OF RS .2,61,266/-. THEREFORE, THE ACTION OF THE ASSESSING OFFICER IS ERRONEOUS AS WEL L AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY SHOW-CAUSE NO TICE WAS ISSUED TO THE ASSESSEE ON 14.03.2012 CALLING UPON HER TO SHOW-CAU SE AS TO WHY ASSESSMENT ORDER DATED 29.11.2010 SHOULD NOT BE REVISED UNDER SECTION 263 OF THE ACT. 3 ITA NO.869/PN/2014 5. IN RESPONSE TO THE SHOW-CAUSE NOTICE, THE ASSESS EE SUBMITTED THAT SHE HAD INHERITED THE LAND FROM HER LATE HUSBAND AND SH E DOES NOT HOLD ANY OTHER LAND, NOR PURCHASED EVEN A SINGLE PIECE OF LAND IN HER LIFE. AS SHE WAS NOT HAVING ANY SOURCE OF INCOME SHE DECIDED TO SELL SOM E PORTION OF THE INHERITED LAND. AS THE LAND WAS AGRICULTURAL LAND WITHIN THE MUNICIPAL LIMIT AND THE LAW DOES NOT ALLOW TO SELL PORTION OF THE LAND IN PIECE MEAL, SHE WAS CONSTRAINED TO COVERT THE SAME INTO NON-AGRICULTURAL LAND SO THAT SHE COULD GET THE REQUIRED PERMISSION FOR SALE AND WOULD ALSO GET MAXIMUM CONS IDERATION FOR SALE. THEREFORE, IN THIS BACKGROUND, THE ASSESSEE STATED THAT THE INCOME DERIVED BY HER ON SALE OF LAND WAS LIABLE TO BE TAXED UNDER TH E HEAD INCOME FROM CAPITAL GAINS AND NOT UNDER THE HEAD BUSINESS INCOME AND THAT THE SAME HAS BEEN CORRECTLY ASSESSED BY THE ASSESSING OFFICER. 6. THE COMMISSIONER DID NOT ACCEPT THE CONTENTION O F THE ASSESSEE. HE OBSERVED THAT THE ASSESSING OFFICER PROCEEDED ON TH E BASIS OF WRONG PRESUMPTION THAT INCOME WAS IN THE NATURE OF LONG T ERM CAPITAL GAINS WITHOUT DEALING WITH THE ISSUE AT ALL. THERE WAS NO APPLIC ATION OF MIND BY THE ASSESSING OFFICER ON THE ISSUE. THE COMMISSIONER C ONSIDERED THE JUDICIAL DECISIONS CITED BY THE ASSESSEE, DURING THE COURSE OF HEARING, AS NOTED IN PARA 6.2 AND 6.3 OF HIS ORDER AND HELD THAT QUESTION WHE THER PROFIT RESULTING FROM TRANSACTION COULD BE ASSESSED UNDER THE HEAD CAPIT AL GAINS OR BUSINESS WOULD DEPEND ON THE FACTS AND CIRCUMSTANCES OF A GI VEN CASE AND THE INTENTION OF THE ASSESSEE EMERGING FROM SUCH FACTS AND CIRCUM STANCES. IN THE PRESENT CASE, IT IS APPARENT THAT THE ASSESSING OFFICER HAS MERELY PRESUMED THE FACTS AND CIRCUMSTANCES RELATING TO THE IMPUGNED TRANSACT IONS, AS STATED BY THE ASSESSEE, TO BE CORRECT. THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY ON THE CORRECTNESS OR OTHERWISE OF THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE. THE CORRECTNESS OF THE AVERMENTS MADE BY THE ASSESSEE W ERE SIMPLY TAKEN FOR GRANTED AND NO ENQUIRY AND VERIFICATION WERE MADE. THE COMMISSIONER FURTHER OBSERVED THAT ALONG WITH RETURN OF INCOME, THE ASSE SSEE HAD ENCLOSED COPIES OF FEW BILLS IN RESPECT OF WORK CARRIED OUT BEFORE THE PLOTS WERE SOLD OUT. THESE INCLUDED PREPARING LAY-OUT, FILLING THE LAND, LEVEL ING THE LAND, ETC.. THIS IN ITSELF SHOWS THAT AFTER THE LAND WAS CONVERTED INTO NON-AGRICULTURAL, THE SAME 4 ITA NO.869/PN/2014 WAS DEVELOPED THROUGH A SERIES OF EFFORTS. THESE T YPES OF ACTIVITIES ARE NORMALLY CARRIED OUT BY A PERSON TRADING AND DEALIN G IN LAND. IT DO NOT OCCUR TO THE ASSESSING OFFICER IF SUCH ACTIVITIES WOULD HAVE ANY BEARING ON THE NATURE OF TRANSACTION COMPRISED IN THE EVENTUAL SALE OF TH E PLOTS. IN THE ABSENCE OF REQUISITE ENQUIRIES, THE INTENTION WHICH PROMPTED T HE ASSESSEE TO CONVERT THE LAND INTO NON-AGRICULTURAL LAND AND THEN DIVIDE THE SAME INTO PLOTS BEFORE THEIR DISPOSAL DID NOT COME OUT. THE COMMISSIONER FINALL Y HELD THAT IN THE ABSENCE OF ANY ENQUIRY AS WAS REQUIRED TO BE MADE, THE ASSE SSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE AND ACCORDINGLY, HE SET-ASIDE THE ASSESSMENT FOR DE-NOVO ASSESSMENT AFTER MAKING REQUISITE ENQUIRIES. 7. AGGRIEVED BY THE AFORESAID ORDER OF THE COMMISSI ONER, THE ASSESSEE IS IN APPEAL BEFORE US. 8. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT THE RELEVANT FACTS PERTAINING TO THE CASE WERE DULY PLA CED BEFORE THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS. T HE ASSESSEE IS AN OLD LADY AND DURING HER LIFE TIME SHE HAS NOT PURCHASED ANY PROPERTY INCLUDING THE PROPERTY ON WHICH THE IMPUGNED CAPITAL GAIN HAS ARI SEN. THE PROPERTY HAS BEEN ACQUIRED UNDER INHERITANCE WHICH WAS SOLD AFTE R CONVERTING IT INTO NON- AGRICULTURAL LAND AND THEN SUB-DIVIDING THE SAME IN TO SMALLER PLOTS ONLY TO OVERCOME THE REGULATORY DIFFICULTIES AND TO GENERAT E MONEY FOR HER PERSONAL NEEDS. ON THE SIMILAR FACTS, THE CASE OF THE ASSES SEE IS SQUARELY COVERED BY THE JUDICIAL DECISIONS IN THE CASE OF SAROJKUMAR MAZUMD AR VS. CIT, 37 ITR 242 (SC); CIT VS. PREMJI GOPALBHAI, 113 ITR 785 (GUJ.); AND, CIT VS. SUSHILA DEVI JAIN, 259 ITR 671 (P&H). IT WAS SUBMITTED BY THE ASSESSEE THAT THE AFORE-CITED DECISIONS WOULD SQUARELY APPLY TO THE F ACTS OF THE PRESENT CASE. IN- PRINCIPLE, THE LD. AUTHORIZED REPRESENTATIVE FOR TH E ASSESSEE EMPHASIZED THE DECISION IN THE CASE OF PREMJI GOPALBHAI (SUPRA) WH EREIN AFTER CONSIDERING THE RATIO OF THE DECISION OF APEX COURT IN THE CASE OF G. VENKATSWAMI NAIDU VS. CIT, 35 ITR 594 (SC), IT WAS HELD THAT PROFITS ARIS ING ON SALE OF ANCESTRAL AGRICULTURAL LAND AFTER CONVERSION INTO NON-AGRICUL TURAL LAND AND THEN DIVISION 5 ITA NO.869/PN/2014 INTO PLOTS WAS ASSESSABLE UNDER THE HEAD CAPITAL G AINS. THUS, IN THE TOTALITY OF THE CIRCUMSTANCES OF THE CASE, IT IS EVIDENT THA T THE STAND TAKEN BY THE ASSESSEE IS PLAUSIBLE AND NOT ERRONEOUS. THE VIEW OF THE ASSESSING OFFICER ON THE ISSUE IS A POSSIBLE VIEW AND THEREFORE THE ASSE SSING OFFICER HAS NOT COMMITTED ANY ERROR IN ACCEPTING THE AFORESAID VIEW . THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE NEXT CONTENDED THAT THE COMMISSIONER MERELY INDULGED IN INVOKING SECTION 263 OF THE ACT IN AN A TTEMPT TO REPLACE THE VIEW OF THE ASSESSING OFFICER WITH HIS OWN VIEW, WHICH M AY PROBABLY RESULT IN BETTER ASSESSMENT FROM REVENUE PERSPECTIVE. THE ME RE SUBSTITUTION OF PLAUSIBLE VIEW BY ANOTHER VIEW IS NOT PERMISSIBLE I N EXERCISE OF POWER CONFERRED UNDER SECTION 263 OF THE ACT. FOR THIS P ROPOSITION, HE RELIED UPON THE JUDICIAL DECISIONS IN THE CASE OF CIT VS. MAX INDIA LTD., (2007) 295 ITR 282 (SC); CIT VS. GABRIEL INDIA LIMITED, 203 ITR 108 (B OM); AND, CIT VS. PREMJI GOPALBHAI, 113 ITR 785 (GUJ.). 9. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE NEXT SUBMITTED THAT THE ASSESSMENT HAS BEEN CARRIED OUT UNDER SECTION 1 47/148 OF THE ACT. AS A COROLLARY, THE ASSESSMENT PROCEEDINGS HAVE BEEN INI TIATED AND COMPLETED AS A RESULT OF SOME CREDIBLE ENQUIRY WHICH LED TO FORMAT ION OF BELIEF ABOUT THE ESCAPEMENT OF INCOME. THE APPLICATION OF MIND IS I MPLICIT IN ACTION UNDER SECTION 147 OF THE ACT. THE ABSENCE OF APPLICATION OF MIND WOULD RENDER THE ENTIRE PROCEEDINGS UNDER SECTION 147 OF THE ACT VOI D AB-INITIO . THUS, THE ASSESSMENT ORDER WOULD ITSELF BECOME A NULLITY. 10. WITHOUT PREJUDICE, THE LD. AUTHORIZED REPRESENT ATIVE FOR THE ASSESSEE FURTHER SUBMITTED THAT THE AGRICULTURAL LAND WAS AN ANCESTRAL PROPERTY WHICH WAS CONVERTED INTO NON-AGRICULTURAL LAND AND THEN S UB-DIVIDED INTO SMALLER SIZE OF PLOT IN THE ASSESSMENT YEAR 2005-06 ITSELF, IMME DIATELY PRIOR TO SALE. THEREFORE, IN VIEW OF SECTION 45(2) OF THE ACT, THE PROFIT UPTO THE DATE OF CONVERSION BASED ON FAIR MARKET VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION WILL, IN ANY CASE, GIVE RISE TO CAPITAL GAINS. ANY APPRECIATION SUBSEQUENT TO THE CONVERSION ONLY CAN BE TAKEN UNDE R THE HEAD BUSINESS INCOME EVEN IF THE ENTIRE CONTENTION OF THE COMMIS SIONER IS TAKEN ON FACE 6 ITA NO.869/PN/2014 VALUE. THIS LEGAL ASPECT WILL RENDER THE ENTIRE EX ERCISE TO TOKENISM AND WILL NOT SERVE ANY PURPOSE. 11. IN THE LIGHT OF THE AFORESAID CONTENTIONS RAISE D AND JUDICIAL DECISIONS RELIED UPON, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLEADED THAT THE ACTION OF THE COMMISSIONER IN INVOKING SECTION 263 OF THE ACT IS PRIMA- FACIE WITHOUT AUTHORITY OF LAW AND DESERVES TO BE Q UASHED. 12. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REV ENUE, ON THE HAND, HEAVILY RELIED UPON THE ORDER OF THE COMMISSIONER U NDER SECTION 263 OF THE ACT. HE SUBMITTED IN FURTHERANCE THAT THE BARE PER USAL OF THE ASSESSMENT RECORDS WOULD SHOW THAT THE ASSESSING OFFICER HAS N OT EXAMINED THE ISSUE AT ALL AS TO WHETHER THE INCOME GENERATED FROM SALE OF PLOT IS BUSINESS INCOME OR CAPITAL GAIN. HE CONTENDED THAT THE ASSESSING OF FICER HAS NOT APPLIED HIS MIND AT ALL TO ANY OF THE VIEW POSSIBLE IN THE FACT S. THE LACK OF ENQUIRY ITSELF HAS VITIATED THE ASSESSMENT IN THE LIGHT OF JUDICIA L DECISION IN THE CASE OF DIT VS. JYOTI FOUNDATION, (2013) 357 ITR 388 AND CIT VS . SOFTWARE CONSULTANTS, 341 ITR 240 (DELHI) AND THEREFORE, HE PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE COMMISSIONER IS CALLED FOR. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS, ORDERS OF THE AUTHORITIES BELOW AND PERUSED THE DECISIONS CITED. JURISDICTION UNDER SECTION 263 OF THE ACT HAS BEEN INVOKED ON THE GROUND THAT THE ACCEPTANCE OF INCOME GENERATED FROM SALE OF PLOTS AS CAPITAL GAINS WHI CH HAS LOWER INCIDENCE OF TAXATION AS COMPARED TO TAXABILITY UNDER THE HEAD BUSINESS INCOME IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IT IS SEEN THAT THE RELEVANT FACTS HAVE BEEN PLACED BEFORE THE ASSE SSING OFFICER IN THE ASSESSMENT PROCEEDINGS. THE FACTS HAVE BEEN RE-APP RECIATED BY THE COMMISSIONER ON A DIFFERENT FOOTING. THE ASSESSING OFFICER HAS ACCEPTED THE CLAIM OF THE ASSESSEE UNDER THE HEAD CAPITAL GAINS BASED ON PERTINENT FACTS. THE ASSESSEE HAS NEVER PURCHASED THE IMPUGNED AGRIC ULTURAL LAND OR ANY OTHER LAND IN HER LIFE TIME AS STATED BY HER. THE PROPER TY WAS BESTOWED UPON HER BY SUCCESSION. WE FIND NO MERIT IN THE ACTION OF THE COMMISSIONER. IN THE 7 ITA NO.869/PN/2014 BACKGROUND OF FACT NARRATED, MERE SELLING OF SUCH A GRICULTURAL LAND AFTER ITS CONVERSION INTO NON-AGRICULTURAL LAND AND DIVIDING THE SAME INTO SMALLER PLOTS FOR CONVENIENCE AND TO OVERCOME REGULATORY HURDLES CANNOT BE CHARACTERIZED AS ADVENTURE IN THE NATURE OF BUSINESS UNDER SECTION 2 (13) OF THE ACT. WE FIND THAT IN THE SIMILAR FACTS, THE HONBLE SUPREME COUR T IN THE CASE OF SAROJKUMAR MAZUMDAR (SUPRA) HAVE CLEARLY HELD IN FAVOUR OF THE ASSESSEE. THEREFORE, THE VIEW TAKEN BY THE ASSESSING OFFICER CANNOT BE FAULT ED ON THE FACE OF IT. NOTABLY, THE ASSESSMENT HAS BEEN FRAMED UNDER SECTI ON 147/148 OF THE ACT WHERE THE APPLICATION OF MIND ON THE MATERIAL AVAIL ABLE ON RECORD GIVING RISE TO THE INFERENCE OF ESCAPEMENT OF INCOME IS A SINE-QUA-NON . THUS, THE ALLEGATIONS OF NON-APPLICATION OF MIND TO THE RELEVANT MATERIAL IS REPUGMENT FROM THIS PERSPECTIVE ALSO. THE OTHER ALLEGATION ON BEHALF O F THE REVENUE IS THAT THE ASSESSING OFFICER HAS NOT WEIGHED THE NATURE OF INC OME BEFORE ACCEPTING THE SAME UNDER THE HEAD CAPITAL GAINS. WE DO NOT FIN D MUCH SUBSTANCE IN THE AFORESAID PLEA EITHER. THE RELEVANT FACTS CONCERNI NG THE ISSUE WERE ADMITTEDLY PLACED BEFORE THE ASSESSING OFFICER IN THE COURSE O F ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS NEVER PURCHASED THE PROPERTY BUT H AS ONLY ACQUIRED THE UNDER SUCCESSION AND SOLD THE SAME. THESE FACTS WOULD NO T POSSIBLY GIVE RISE TO ANY INFERENCE THAT THE ASSESSEE IS INDULGED IN SOME KIN D OF SYSTEMATIC OR ORGANIZED ACTIVITY AKIN TO BUSINESS. THE VIEW IS SUPPORTED B Y THE HONBLE SUPREME COURT IN SAROJKUMAR MAZUMDAR (SUPRA), AND HONBLE G UJARAT HIGH COURT IN PREMJI GOPALBHAI (SUPRA). THEREFORE, IT IS A CLEAR CUT CASE THAT THE ASSESSING OFFICER HAS COME TO A PRIMA-FACIE CONCLUSION SUPPOR TED BY JUDICIAL DICTA. THE COMMISSIONER IS ONLY SEEKING TO REPLACE THE VIEW OF THE ASSESSING OFFICER BY INDULGING IN LONG DRAWN AND DEBATABLE PROCESS TO AS SERT HIS OWN VIEW WHICH IS NOT PERMISSIBLE UNDER SECTION 263 OF THE ACT. WE D O NOT FIND ANY ERROR PER SE IN TAXING THE INCOME RESULTING FROM SALE OF PLOTS I MPUGNED UNDER THE HEAD CAPITAL GAINS. THE COMMISSIONER HAS ALSO FAILED TO TAKE NOTE OF SECTION 45(2) WHICH HELPS THE CASE OF THE ASSESSEE IN THE ALTERNA TIVE. IN OUR CONSIDERED VIEW, SECTION 263 OF THE ACT CANNOT BE INVOKED ONLY ON AN Y SLIGHTEST PRETEXT TO CHASE A WILL--THE-WISP. THE REVISIONARY POWER UNDER SEC TION 263 OF THE ACT CAN BE EXERCISED ONLY WHEN THE ORDERS OF THE AUTHORITIES A RE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE IN TERMS OF SECTION 263 OF THE ACT. 8 ITA NO.869/PN/2014 WHEN A VIEW IS PLAUSIBLE IN LAW, WHICH IS TAKEN BY THE ASSESSING OFFICER, THE ACTION CANNOT BE SAID TO ERRONEOUS. IN THE LIGHT O F AFORESAID DISCUSSION, WE ARE INCLINED TO ACCEPT THE CONTENTIONS ON BEHALF OF THE ASSESSEE. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED AND THE ORDER OF THE COMMISSIONER UNDER SECTION 263 OF THE ACT IS QUASHE D. ORDER PRONOUNCED ON THIS 30 TH DAY OF SEPTEMBER, 2015. SD/- SD/- ( VIKAS AWASTHY ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER PUNE ; DATED : 30 TH SEPTEMBER, 2015. % & '( )*' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT-I, PUNE; 4) THE DR A BENCH, I.T.A.T., PUNE; 5) GUARD FILE. %+ / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE