Shri Bhupendra Viswakarma, Bhopal V. Thr Pr.CIT Central, Bhopal

ITSSA 46/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8709 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-06-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 16-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Sale consideration of property below Jantri Value; Business income; Principle of natural justice; Fair market value
• Section: 143(3); 50C; 54F; 153A; 54; 263; 132; 139

Judgement Text

[IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS.45 & 46/IND/2018 ASSESSMENT YEARS: 2013-14 & 2010-11 B HUPENDRA VISHWAKARMA 58, TAGORE NAGAR, PHASE-I KHAJURI KALA ROAD, PIPLANI BHOPAL / VS. PRINCIPAL CIT (CENTRAL) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. ABXPV6029J APPELLANT BY SHRI S.S. DESHPANDE, A.R. RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 24.06.2019 DATE OF PRONOUNCEMENT: 10.07.2019 / O R D E R PER KUL BHARAT, J.M: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST TWO DIFFERENT ORDERS OF THE PRINCIPAL COMMISSIONER O F [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 2 INCOME TAX (CENTRAL) BOTH DATED 16.3.2018 PERTAINING T O THE ASSESSMENT YEARS 2010-11 & 2013-14. BOTH THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE. FIRST WE TAKE UP ASSESSEES APPEAL IN IT (SS)A NO.46/IND/2018 PERTAINING TO THE ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE OF THE ASSESSEE, THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX WAS NOT JU STIFIED IN INITIATING PROCEEDINGS U/S 263 AS THE SAME WAS BARRED BY LIMIT ATION. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE OF THE ASSESSEE, THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX WAS NOT JU STIFIED IN HOLDING THAT THE ORDER PASSED IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE OF THE ASSESSEE, THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX WAS NOT JU STIFIED IN HOLDING THAT THE CLAIM OF THE ASSESSEE THAT THE HE HAS INVESTED THE SALE PROCEEDS IN A RESIDENTIAL HOUSE IS NOT VERIFIABLE. 4. THAT THE ASSESSEE CRAVES LEAVE TO ADD, AMEND, MODIF Y OR ALTER ANY GROUND OF APPEAL ON OR BEFORE THE HEARING. 2. BRIEFLY STATED FACTS ARE THAT A SEARCH & SEIZURE ACTIO N U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALL ED AS THE ACT) WAS CARRIED OUT AT THE PREMISES OF THE ASSES SEE ON [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 3 29.1.2014. SUBSEQUENTLY, PROCEEDINGS U/S 153A OF TH E ACT WAS INITIATED AND ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT WAS PASSED ON 14.3.2016, THEREBY ASSESSING A TOTAL INCOME OF RS.16,88,730/-. THE LD. PRINCIPAL CIT OB SERVED THAT ON VERIFICATION OF THE RECORD, IT WAS REVEALED THAT ASSESSEE HAD SOLD PLOT NO.18A, GULMOHAR COLONY, CHUNNA BHATTI DURING THE FINANCIAL YEAR 2009-10 RELEVANT TO TH E ASSESSMENT YEAR 2010-11 FOR A SUM OF RS.26,01,000/-. THE FAIR MARKET VALUE OF PROPERTY ON DATE OF TRANSFER BE ING 29,71,000/- AND LONG TERM CAPITAL GAIN WAS WORKED OUT ON IT AT RS.22,35,813/-. IT IS OBSERVED THAT THE ASSESSE E HAD CLAIMED EXEMPTION U/S 54F OF THE ACT OF RS.20,82,201 /- AS PER THE COMPUTATION OF INCOME. THE ASSESSEE HAD NOT FURNISHED THE SALE DEED OF PLOT FOR ASCERTAINING THE V ALUE AS PER SECTION 50C OF THE ACT. IT WAS FURTHER REVEALED THAT THE ASSESSEE HAD NEITHER PURCHASED ANY RESIDENTIAL HOUSE AS PER DETAILS OF IMMOVABLE ASSETS FURNISHED DURING THE [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 4 ASSESSMENT WITHIN PRESCRIBED LIMIT NOR THE LONG TERM CAPITAL GAIN WAS DEPOSITED IN CAPITAL GAIN ACCOUNT SCHEME . THEREFORE, THE ASSESSEE WAS NOT ELIGIBLE FOR CLAIMING EXEMPTION U/S 54F OF THE ACT. ACCORDINGLY, LONG TE RM CAPITAL GAIN WAS REQUIRED TO BE ASSESSED AT RS.20,82,201/ - FOR THE ASSESSMENT YEAR 2010-11, WHICH WAS NOT DONE. THIS OMISSION RESULTED IN UNDER ASSESSMENT OF LONG T ERM CAPITAL GAIN TO THE EXTENT OF RS.20,82,201/-. THEREFO RE, THE LD. PR. CIT WAS OF THE VIEW THAT THE ASSESSMENT ORDER SO FRAMED WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THE GROUND THAT THE LONG TERM CAPITAL GAIN W AS NOT ASSESSED AND THE EXEMPTION U/S 54F OF THE ACT WAS ALLOWED WITHOUT ASCERTAINING THE CONDITIONS LAID DOWN U /S 54 OF THE ACT. THEREAFTER, A NOTICE TO THE ASSESSEE WAS ISSUED. IN RESPONSE TO THE NOTICE, THE ASSESSEE FIL ED A REPLY WHICH WAS NOT FOUND TO BE ACCEPTABLE BY THE LD. PR. CI T AND HE DIRECTED THE A.O. TO REFRAME THE ORDER AFTER [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 5 EXAMINING THE AFOREMENTIONED ISSUE. AGGRIEVED AGAINST THIS ORDER, THE ASSESSEE IS IN PRESENT APPEAL. 3. APROPOS TO GROUND NO.1, LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS AS MADE BEFORE LD. PCIT. HE VEHEMENTLY ARGUED THAT IMPUGNED ORDER IS BARRED BY LIMITATION. IT IS CONTENDED THAT IN THIS CASE ORIGINAL LY RETURN U/S 139 OF THE ACT WAS FILED ON 7.9.2011 CLAIM ING A DEDUCTION OF RS.24,22,298/- U/S 54F OF THE ACT. HE CONTENDED THAT NO PROCEEDINGS U/S 143(2) OF THE ACT WAS INITIATED ON THE RETURN FILED AND ACCORDINGLY, THE ASSESSMENT IS TO BE DEEMED TO HAVE BEEN COMPLETED ON 30.9.2012. THUS, THE CLAIM OF THE ASSESSEE FOR DEDUC TION U/S 54F OF THE ACT ATTAINED FINALITY ON THAT DATE. ACCORDINGLY, PROCEEDINGS U/S 263 OF THE ACT WOULD H AVE BEEN INITIATED FOR THIS ASSESSMENT YEAR UP TILL 31.3.2 015. HENCE, THE PROCEEDINGS IS BARRED BY LIMITATION AND LD. COUNSEL PLACED RELIANCE ON THE JUDGEMENT OF THE HON'B LE [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 6 SUPREME COURT RENDERED IN THE CASE OF CIT VS. ALAGEND RAN FINANCE LTD. (2007) 9 ITJ 613 (SC). 4. PER CONTRA, LD. CIT(DR) OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT THE SUBMISSION OF THE ASSESSEE ARE MISCONCEIVED. LD. CIT(DR) SUBMITTED THAT ADMITTEDLY IN THIS CASE, NO ASSESSMENT U/S 143(3) OF THE ACT WAS FR AMED. LD. CIT(DR) SUBMITTED THAT THE RATIO OF THE HON'BLE SUPREME COURT RENDERED IN THE CASE OF CIT VS. ALAGEND RA FINANCE LTD. (SUPRA) AS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE IS NOT APPLICABLE ON THE FACTS OF THE PRESEN T CASE AS THE FACTS IN THE PRESENT CASE ARE CLEARLY DISTINGUISH ABLE. LD. CIT(DR) SUBMITTED THAT IN THE PRESENT CASE THERE WAS NO ASSESSMENT U/S 143(3) OF THE ACT. TH A.O. HAS N OT MADE THE REQUISITE ENQUIRY AND APPLIED HIS MIND FOR ALLOWABILITY OF SUCH DEDUCTION. FURTHER, LD. CIT(DR ) SUBMITTED THAT THE JUDGEMENT RELIED BY THE LD. COUNS EL FOR THE ASSESSEE THE FACTS WERE THAT CASE WAS REOPENED U/S [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 7 147 OF THE ACT AND IT WAS NOT THE CASE WHERE THE ASSESSMENT WAS FRAMED U/S 153A OF THE ACT. LD. D.R. SUBMITTED THAT BOTH THE PROVISIONS OPERATE IN DIFFERE NT FIELDS. LD. D.R. RELIED ON THE FINDING OF THE LD. PR. CIT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT LD. PR. CIT H AS DECIDED THIS ISSUE IN PARA 7.4 OF HIS ORDER BY OBSERV ING AS UNDER: [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 8 [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 9 6. WE DO NOT FIND ANY MERIT INTO THIS CONTENTION OF THE ASSESSEE THAT IMPUGNED ORDER IS HIT BY LIMITATION AS I N THE CASE IN HAND, THERE WAS NO ASSESSMENT U/S 143(3) OF TH E ACT. IT WAS MERELY A PROCESSING WHERE THE ASSESSING O FFICER HAD PROCESSED THE RETURN OF THE INCOME AND DID NOT SCRUTINISE THE CLAIM OF THE ASSESSEE. WE ARE ALSO IN AGREEMENT OF THE FINDING OF THE LD. CIT(DR) THAT SECT ION 147 OF THE ACT AND SECTION 153A OF THE ACT OPERATE IN TWO DIFFERENT AND DISTINCT FIELDS. THEREFORE, THE JUDGE MENT OF [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 10 HON'BLE APEX COURT RENDERED IN THE CASE OF CIT VS. ALAGENDRAN FINANCE LTD. (SUPRA) WOULD NOT HELP THE ASSESSEE. HENCE, WE FIND NO MERIT IN THE GROUND RAIS ED AND THE SAME IS DISMISSED. 7. GROUND NOS.2 & 3 ARE INTER-RELATED. LD. COUNSEL F OR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE BEFORE THE LD. PRINCIPAL CIT. IT WAS CONTENDED THAT A SEARCH WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 29.1.201 4. IN PURSUANCE OF NOTICE U/S 153A OF THE ACT RETURN WAS FILED AND THE DEDUCTION AS CLAIMED IN THE ORIGINAL RETURN WAS ALSO MADE. ASSESSMENT U/S 153A OF THE ACT WAS COMPLE TED ON 14.3.2016. THE ASSESSING OFFICER HAD ALLOWED CLAIM OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESS MENT YEAR 2010-11 HAD ALREADY BEEN COMPLETED AND DID NOT ABATE. THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH WHICH COULD HAVE DOUBTED THE CLAIM OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ORDER AS [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 11 SOUGHT TO BE REVISED BY THE LD. PRINCIPAL CIT WAS NEI THER ERRONEOUS NOR ANY PREJUDICE WAS CAUSED TO THE REVENUE. UNDER THESE FACTS, HE CONTENDED THAT LD. PRINCIPAL CI T WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS U/S 263 OF THE ACT. LD. CIT(DR) OPPOSED THESE SUBMISSIONS AND RELIED ON THE FINDING OF THE LD. PRINCIPAL CIT. LD. CIT D.R. SUBM ITTED THAT THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY IN RESPECT OF THE CLAIM OF THE ASSESSEE AS MADE U/S 54F OF THE ACT. LD. D.R. FURTHER SUBMITTED THAT LACK OF ENQUIRY ON THE ADMISSIBILITY OF CLAIM FOR DEDUCTION U/S 54F OF THE A CT IS ERRONEOUS AND ALLOWING THE DEDUCTION WHICH WAS NOT AVAILABLE TO THE ASSESSEE IS CERTAINLY PREJUDICIAL TO TH E INTEREST OF THE REVENUE. LD. CIT(DR) THEREFORE SUB MITTED THAT THERE IS NO INFIRMITY IN THE IMPUGNED ORDER. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE CONTENTION OF THE ASSE SSEE [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 12 ARE TWO FOLD, FIRSTLY THE CLAIM WAS MADE IN ORIGINAL RE TURN WHICH WAS PROCESSED AND THEREFORE, IT CANNOT BE INFERR ED THAT THE CLAIM WAS MADE FIRST TIME DURING THE PROCEEDIN GS U/153A OF THE ACT AND SECONDLY, THERE WAS NO INCRIMINATING MATERIAL SUGGESTING THAT THE DEDUCTION SO CLAIMED WAS NOT ALLOWABLE TO THE ASSESSEE. IT IS CONTEN DED THAT IN THE PRESENT CASE, ASSESSMENT HAS ALREADY BEEN COMPLETED AND IT WAS NOT AN ABATED ASSESSMENT. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THERE IS NO DISPU TE THAT AS PER SECTION 263 OF THE ACT, THE PRINCIPAL COMMISSI ONER OF INCOME TAX IS EMPOWERED TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND IF HE CON SIDERS THAT ANY ORDER PASSED THEREIN BY THE A.O. IS ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REV ENUE. HENCE, THERE IS NO PROHIBITION UNDER THE LAW THAT TH E LD. PRINCIPAL CIT CANNOT REVISE THE ORDER PASSED U/S 153A OF THE ACT. HOWEVER, EXERCISING OF THE JURISDICTION I S SUBJECT [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 13 TO SATISFACTION OF TWIN CONDITIONS I.E. THE ORDER SO PASSED IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTER EST OF THE REVENUE. THE LAW IS WELL SETTLED MERELY AN ERRONEOU S ORDER WOULD NOT BE SUFFICIENT TO MAKE SUCH ORDER SUBJECT M ATTER OF REVISION U/S 263 OF THE ACT UNLESS SUCH ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN OUR CONSIDERED VIEW, CONSIDERATION BY THE PRINCIPAL CIT FOR ASCERTAINI NG THAT ANY ORDER PASSED IS ERRONEOUS SO FAR AS IT IS PREJU DICIAL TO THE INTEREST OF THE REVENUE IS NOT MECHANICAL. TH ERE HAS TO BE SOME MATERIAL OR THE BASIS OF SUCH CONSIDERATION. IN OUR VIEW, REVISIONARY POWER IS NOT A TOOL TO CORRECT ANY ERROR OR MISTAKE. BUT IF ANY ERROR IN EXERCISING OF JURISD ICTION OR APPRECIATING OF ANY FACT OR LAW IS OF SUCH NATURE THAT CAU SE PREJUDICE TO THE INTEREST OF THE REVENUE, THE SPIRI T OF LAW TO BE FOLLOWED IN TRUE SENSE. THE SCOPE OF POWERS U/S 263 OF THE ACT HAS ALREADY BEEN EXAMINED IN CATENA OF [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 14 JUDGEMENTS. THE HON'BLE APEX COURT IN THE CASE OF MAL ABAR INDUSTRIAL COMPANY VS. CIT 243 ITR 87 HAS HELD AS UNDER : A BARE READING OF THIS PROVISION MAKES IT CLEAR THA T THE PREREQUISITE TO EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTO UNDER IT, IS THAT THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS IN SOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER H AS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I). THE ORDER OF THE ASSESSING OFFICER 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 INC OME-TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUE-- RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THERE CAN BE NO DOUBT THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COM MITTED BY THE ASSESSING OFFICER; IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN I NCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PR INCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REV ENUE IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UN DERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. THE HIGH COURT OF CALCUTTA IN DAWJEE DADABHOY & CO. VS. S.P. JAIN AND ANOTHER [31 ITR 872], THE HIGH COURT OF KARNATAKA IN COMMIS SIONER OF INCOME- TAX, MYSORE VS. T. NARAYANA PAI [98 ITR 422], THE H IGH COURT OF BOMBAY IN COMMISSIONER OF INCOME-TAX VS. GABRIEL INDIA LTD . [203 ITR 108] AND THE HIGH COURT OF GUJARAT IN COMMISSIONER OF INCOME -TAX VS. SMT. MINALBEN S. PARIKH [215 ITR 81] TREATED LOSS OF TAX AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. MR. ABARAHAM RELIED ON THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT OF MADRAS IN VENKATAKRISHNA RICE COMPANY VS. COMMISSIONER OF INCOME-TAX [163 ITR 129] INTERPRETING PREJUDICIA L TO THE INTERESTS OF THE REVENUE. THE HIGH COURT HELD, IN THIS CONTEXT, IT M UST BE REGARDED AS INVOLVING A CONCEPTION OF ACTS OR ORDERS WHICH ARE SUBVERSIVE OF THE ADMINISTRATION OF REVENUE. THERE MUST BE SOME GRIEV OUS ERROR IN THE ORDER [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 15 PASSED BY THE INCOME-TAX OFFICER, WHICH MIGHT SET A BAD TREND OR PATTERN FOR SIMILAR ASSESSMENTS, WHICH ON A BROAD RECKONING , THE COMMISSIONER MIGHT THINK TO BE PREJUDICIAL TO THE INTERESTS OF R EVENUE ADMINISTRATION. IN OUR VIEW THIS INTERPRETATION IS TOO NARROW TO MERIT ACCEPTANCE. THE SCHEME OF THE ACT IS TO LEVY AND COLLECT TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THIS TASK IS ENTRUSTED TO THE REVENUE. IF D UE TO AN ERRONEOUS ORDER OF THE INCOME-TAX OFFICER, THE REVENUE IS LOSING TA X LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REVENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A SSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF ASS ESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVE NUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMI SSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH TH E COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORD ER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY T HE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COUR T THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HAN DS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF TH E REVENUE. RAMPYARI DEVI SARAOGI VS. COMMISSIONER OF INCOME-TAX [67 ITR 84] AND IN SMT. TARA DEVI AGGARWAL VS. COMMISSIONER OF INCOME-TAX, WEST BENGAL [88 ITR 323] (SC). 9. LOOKING TO THE FACTS OF THE PRESENT CASE, ADMITTED LY, ASSESSEE HAD SOLD A PLOT OF LAND AT A SUM OF RS.27,43,500 /- WHICH WAS REGISTERED IN FAVOUR OF THE PURCHASER ON 14.3.2013. IT WAS ADMITTED BEFORE THE LD. CIT THAT T HE SALE OF THE PROPERTY ESCAPED ATTENTION OF THE ACCOUNTANT OF THE ASSESSEE DURING THE FINANCIAL YEAR 2012-13 AND WAS NOT RECORDED IN THE BOOKS AS THE ASSESSEE HAD NOT RECEIV ED THE [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 16 LAST INSTALMENT DURING THE FINANCIAL YEAR 2012-13. THE ERROR DID NOT COME TO THE NOTICE OF THE AUDITORS ALSO . THE RETURN FOR THE ASSESSMENT YEAR 2013-14 WAS FILED WITH OUT INCORPORATING THE SALE OF THE PLOT. IT WAS FURTHER CO NTENDED THAT THE INCOME TAX RETURN OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2013-14 WAS FILED U/S 139(4) OF THE A CT AND COULD NOT HAVE BEEN REVISED. UNDER THESE CIRCUMSTANCES, IT IS STATED THAT SALE WAS RECORDED DURIN G THE FINANCIAL YEAR 2013-14 AND WAS OFFERED TO TAX AS INCOME IN THE RETURN FOR THE ASSESSMENT YEAR 2014-15. IT WAS FURTHER CONTENDED THAT SO FAR THE APPLICATION OF PROVISION OF SECTION 50C OF THE ACT IS CONCERNED, T HE ASSESSEE HAD BEEN DEALING IN REAL ESTATE AND HAD SHOWN THE INCOME AS BUSINESS INCOME. ACCORDINGLY, PROVISI ONS OF SECTION 50C OF THE ACT COULD NOT BE APPLICABLE IN TH E CASE OF THE ASSESSEE AS THE PROVISIONS ARE APPLICABLE IN RESPE CT OF THE INCOME COMPUTED AS CAPITAL GAIN. THE LD. CIT HAD [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 17 INVOKED PROVISIONS OF SECTION 263 OF THE ACT ON THE BASIS THAT THE ASSESSEE FAILED TO DISCLOSE THE SALE CONSIDERAT ION AND ALSO DID NOT WORK OUT LONG TERM CAPITAL GAIN IN ACCORDANCE WITH THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY AS PER SECTION 50C OF THE ACT. THE CONTEN TION OF THE ASSESSEE IS THAT PROVISIONS OF SECTION 50C OF THE ACT ARE NOT APPLICABLE AS THE ASSESSEE IS ENGAGED IN THE REAL EST ATE BUSINESS. HOWEVER, THIS FACT IS CONTRARY TO THE RECO RDS AS PER THE AUDITED REPORT, WHEREIN THE NATURE OF BUSINES S IS STATED TO BE CONTRACTORS/CIVIL CONTRACTORS. HENCE, WE DO NOT HAVE ANY HESITATION TO COME TO THE CONCLUSION THAT THE LD. PRINCIPAL CIT WAS JUSTIFIED IN INVOKING THE PROVI SIONS U/S 263 OF THE ACT. THE GROUNDS RAISED IN THE APPEAL ARE DISMISSED. HOWEVER, BEFORE PARTING WE WISH TO CLARIF Y THAT A.O. WOULD DECIDE CLAIM OF DEDUCTION U/S 54F OF THE ACT IN ACCORDANCE WITH LAW. [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 18 10. NOW COMING TO THE IT(SS)A NO.46/IND/2018. THE FACTS AND THE GROUNDS ARE IDENTICAL EXCEPT FIGURES. THERE I S NO CHANGE IN THE FACTS AND CIRCUMSTANCES. THE RESPECTIVE REPRESENTATIVES OF THE PARTIES HAVE ADOPTED THE SAME ARGUMENTS AS WERE IN IT (SS)A NO.45/IND/2018, WHEREIN , WE HAVE REJECTED THE GROUNDS OF APPEAL. TAKING A CONSISTENT VIEW AND FOR THE SAME REASONING, GROUNDS R AISED IN THIS APPEAL ARE ALSO DISMISSED. HOWEVER, THE A.O. W OULD BE AT LIBERTY TO DECIDE THE ISSUES IN ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY THE OBSERVATIONS MADE IN THE IMPUGNED ORDER. 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE A RE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 10. 07.2019. SD/ - (MANISH BORAD) SD/ - (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 10/07/2019 VG/SPS [IT(SS)A NOS.45 & 46/IND/2018] [BHUPENDRA VISHWAKARMA, BHOPAL] 19 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE