2014 (4) TMI 528 - AT - Income Tax

Tribunal Overturns Tax Commissioner's Order, Assessing Officer's Inquiries Deemed Sufficient

The Tribunal set aside the Commissioner of Income Tax's order under Section 263, ruling that the Assessing Officer had conducted sufficient inquiries ... Validity of Revision u/s 263 of the Act – Explanation for debit and credit entries – Held that:- The AO himself can find his order as erroneous and prejudicial to the interest of the Revenue and can make such proposal to the CIT u/s the Act - The power of revision vests in Commissioner who may call and examine the record of any proceeding under the Act and if he considers that any order passed by the AO is erroneous and prejudicial to the interest of the Revenue - He may after giving the assessee an particular opportunity of being heard or after making any such enquiry revise that order - the AO has to examine the record himself to come to a conclusion that the order is erroneous and prejudicial to the interest of the Revenue - There is no such procedure laid under the Section wherein the AO himself can propose the order to file u/s 263 of the Act - the action of the AO is unwarranted and not legal - On the basis of such proposal, the CIT cannot take action as he has taken in this regard –Relying upon Rajeev Arora vs. CIT [2010 (7) TMI 641 - ITAT JAIPUR] -the AO cannot propose his own order by treating it as erroneous and prejudicial to the interest of Revenue for getting it revised by the Commissioner u/s 263 of the Act. The assessee has clearly explained the debit and credit entries as discussed in the written submission and also explained the cost of improvement shown by the assessee and the status of the land etc. - this is not a case of no verification or no proper verification - The verification done by the AO is also to be treated as proper unless some specific instruction or prescription of a particular section of the Act has not been carried out by the AO or else the AO has not conducted enquiry as demanded by law - The twin conditions of Section 263 are not found to co-exist – thus, the order of the CIT(A) set aside – Decided in favour of Assessee. Issues Involved:1. Validity of action under Section 263 based on the proposal of the Assessing Officer (AO).2. Jurisdiction of the Commissioner of Income Tax (CIT) in invoking Section 263.3. Adequacy of verification of credit and debit entries in the assessee's bank account.4. Examination of the cost of improvement and the nature of the property sold.Detailed Analysis:1. Validity of Action under Section 263 Based on the Proposal of the AO:The assessee argued that the action under Section 263 was invalid as it was initiated based on the AO's proposal, which is not permissible. The AO cannot propose to take action under Section 263 for an assessment made by his predecessor. The CIT must independently find the order erroneous and prejudicial to the interests of the revenue. This view is supported by the cases of Jheendu Ram v/s CIT and Rajeev Arora v/s CIT, where it was held that the AO cannot propose his own order for revision under Section 263.2. Jurisdiction of the CIT in Invoking Section 263:The CIT can only exercise jurisdiction under Section 263 if the order of the AO is both erroneous and prejudicial to the interests of the revenue. The CIT must have material on record to arrive at such a conclusion. The assessee contended that the AO had made necessary inquiries and had taken a possible view, thus the order was not erroneous. The CIT's action was deemed invalid as he did not independently verify the issues raised by the AO and merely acted on the AO's proposal.3. Adequacy of Verification of Credit and Debit Entries in the Assessee's Bank Account:The assessee submitted that the AO had verified the bank account entries during the assessment proceedings. The AO had examined the entries and found no undisclosed income. The CIT did not provide any specific instance of unverified entries or undisclosed income. The Tribunal found that the AO had made adequate inquiries and the CIT's conclusion that the AO's order was erroneous and prejudicial to the revenue was not justified.4. Examination of the Cost of Improvement and the Nature of the Property Sold:The assessee argued that the AO had examined the cost of improvement and the nature of the property during the assessment proceedings. The property was originally a house, which was later improved and sold as a plot. The AO had accepted the cost of improvement based on the bills and vouchers submitted by the assessee. The CIT's view that the AO did not properly verify these aspects was found to be incorrect. The Tribunal held that the AO had made proper inquiries and the CIT's action under Section 263 was not warranted.Conclusion:The Tribunal set aside the CIT's order under Section 263, concluding that the AO had made adequate inquiries during the assessment proceedings. The CIT's action was based on the AO's proposal, which is not permissible under the law. The AO had verified the bank entries and the cost of improvement, and the CIT did not provide any material to prove that the AO's order was erroneous and prejudicial to the revenue. The appeal of the assessee was allowed.