Court No. - 37 Case :- INCOME TAX APPEAL DEFECTIVE No. - 151 of 2008 Petitioner :- The Commissioner Of Income Tax And Another Respondent :- Jai Prakash & Sons Petitioner Counsel :- S.C.(A.N.Mahajan) Hon'ble Rajes Kumar,J.
Hon’ble Bharati Sapru,J.
The Tribunal by the impugned order has set aside the order passed by the
Commissioner of Income Tax on the ground that the assessment order was
not pre-judicial to the interest of Revenue. Tribunal held that the partnership
firm, M/s Genda Mal & Sons has not been assessed to tax for the capital gain
and the share income of the partners of the partnership firm towards capital
gain was less than the amount which has been assessed by the assessing
authority under Section 55 (2)(b) (ii) of the Income Tax Act (hereinafter
referred to as the “Act”) and, therefore, the assessment order was not pre-
judicial to the interest of Revenue. For invoking the provisions of Section 263
of the Act two conditions namely that the order is erroneous and pre-judicial
to the interest of Revenue, should co-exist. If one of the condition does not
exist the provisions of Section 263 of the Act can not be invoked. On the facts
and circumstances, the Tribunal has recorded a categorical finding based on
material on record that the assessment order was not pre-judicial to the
interest of Revenue.
Learned Standing Counsel is not able to dispute the findings recorded by the
Tribunal. In view of the above, we are of the opinion that the findings of the
Tribunal are finding of fact based on the material on record and no substantial
question arise from the order of the Tribunal.
In the result, the appeal fails and is accordingly, dismissed.
Order Date :- 22.7.2010
R./