THE ITO, WARD-3(3)(6),, AHMEDABAD vs. M/S. DHARA JAGDISHCHANDRA PATEL,, AHMEDABAD

Briefly stated the facts of the case that the return of income was filed by the appellant on 08/03/2010 declaring total income of Rs. 1,03,79,640/-. Subsequently, show cause notice u/s. 263 of the Act dated 18/07/2013 was issued by the ld. CIT calling upon the appellant to show cause as to why revisionary proceeding u/s.263 of the Income Tax Act should not be initiated for modifying or cancelling the said assessment order, as the facts so warrant. In response to the same, appellant attended from time to time and detailed reply was submitted by the appellant. However, the ld.CIT was not agreed with the contention and directing the Assessing Officer to pass appropriate order and in view of the direction issued by the ld. CIT. Ld. A.O. issued notice to the appellant and appellant submitted the detailed reply before the A.O. However, ld.A.O. without taken into consideration the said submission order u/s. 143(3)

Now Department has come before us stating that deleting the addition of Rs. 3,81,58,013/- which was made on account of Transfer Expenses on sale of land Shri Vijay Shah, Managing Director of Prerna Infra Build Ltd.

At the outset, ld. A.R. filed a copy of assessee’s own case in which one of the beneficiary matter was decided in her favour with the same subject matter and facts of the cited case were: 3. Briefly stated facts as culled out from the records are that the assessee is an individual. She filed her return of income for A.Y. 2009-10 on 08/03/2010, declaring total income at Rs.1,03,79,640/-.Case was picked up for scrutiny assessment and notice u/s.143 (2) of the Act followed by notice u/s.142(1) of the Act was issued, calling for necessary details which were duly filed by the Authorized Representative on behalf of the assessee. Order u/s.143(3) of the Act was framed on 30/08/2011 accepting return of income as assessed income at Rs.1,03,79,640/-. Thereafter survey u/s.133A of the Act was conducted on 27/08/2008 at the premises of Mr.Bhalubhai A Patel, wherein certain loose papers (A-1/13 A-1/11) were found and impounded containing some information about land at survey Nos.334,335 & 344 at Sarkhej Ahmedabad. These documents also included the details of land at survey no.335 & 334 which was jointly owned by assessee and two other persons. Further this information was having link with income tax return filed by the assessee showing short term capital gain of Rs.95,06,960/- earned from selling one third share in the land at Sarkhej, Ahmedabad, bearing survey no.335 and 344. Ld.CIT accordingly initiated proceedings u/s.263 of the Act and observed that assessee has claimed deduction of Rs.3,81,58,013/- on account of transfer expenses.

We are also of the opinion that Ld.CIT can initiate proceedings u/s.263 of the Act only if no enquiries has been conducted by Assessing Officer. Ld.CIT cannot give specific instruction to the Assessing Officer to change the mode of enquiry or intensify enquiry. If the Assessing Officer has carried out the process usually taken up in the assessment proceedings and assesse has filed complete details to the satisfaction of Assessing Officer and Ld.AO has taken the permissible view which finds it place in the body of assessment order also than it cannot be said that no enquiry or inadequate enquiry was conducted by the Assessing Officer. That the view taken by Ld.AO accepting the returned income of assessee u/s.143(3) of the Act after entertaining the detailed reply of assessee, and it gets due support from the fact that similar type of has been taken by Ld.CIT(A) in the case of assessee's father adjudicating similar facts deleting the addition made by Ld.AO and holding the transfer expenses paid ITA no.1116/Ahd/2014 Asstt. Year 2009-10 to M/s.Prerna Infrabuild Ltd. as genuine. There is nothing on record to suggest that the view taken by the Ld.AO is unsustainable in law.

Considering the facts in totality in the light of judicial decisions discussed above and in our understanding of law, we find that assessment order u/s.143(3) of the Act framed on 30/08/2011 is neither erroneous not prejudicial to the interest of Revenue. We therefore set aside the impugned order passed by the Ld.CIT u/s.263 of the Act and restore that of the Assessing Officer dated 30/08/2011 passed u/s.143(3) of the Act.

Since relief has already been granted by the ITAT as aforesaid in favour of assessee. Now nothing remains against the assessee. As already matter decided in favour of assessee. Therefore appeal of the Revenue is dismissed.

In the result, the appeal filed by the Revenue is dismissed.

As we can see, relief has already been granted by us and C.O. is supportive. Therefore, same is dismissed as supportive.