COMMISSIONER OF INCOME TAX-11 Vs. BINA INDRAKUMAR

JUDGEMENT

(1.) This Appeal by the Revenue challenges the order passed by the Income Tax Appellate Tribunal on 15 June 2012 in Income Tax Appeal No. 4106/Mum/2011 for the Assessment Year 2006-07. The Tribunal was considering the challenge to the order passed by the Commissioner of Income Tax dated 29 March 2011. The Commissioner invoked his power under section 263 of the Income Tax Act, 1961 to set aside the assessment order dated 15 December 2008, as in the opinion of the Commissioner the same is erroneous and in so far as it is prejudicial to the interest of the Revenue.

(2.) The Tribunal, Mumbai Bench, found that the Commissioner's power under section 263 could not have been exercised in the given facts and circumstances. The exercise of powers was based merely on change of opinion. If the Commissioner held the particular opinion, but on the same transaction and same dealing, then that was not enough to enable him to exercise this power, is the conclusion reached.

(3.) Mr. Chhotaray, learned Counsel appearing on behalf of the Revenue, would submit that this conclusion of the Tribunal is vitiated by error of law apparent on the face of the record. He took us through the order of the Assessing Officer and that of the Commissioner. He showed us relevant dates. He submits that on 14 March 2001 three flats/immoveable property are stated to have been acquired by the Assessee, but that is incorrect. There was a deed of rectification dated 9 October 2002. There is another date, i.e. 24 October 2002, which is when the agreements were registered with the authorities for stamp duty purpose. In such circumstances, he submits that the Assessee is not entitled to claim long term capital gains if the asset was not held for the minimal period of 36 months. There is another date and which is the date of the Occupation Certificate issued by the Municipal Corporation in this case and that is stated to be 20 January 2003. This only means that the flats were not ready for occupation and could never have been in possession of the Assessee.