2015 (7) TMI 558 - AT - Income Tax

Tribunal restores assessment, rejects CIT's Section 263 revision. Section 50C not applicable to business.

Hari Om Anand, Meerut Versus Commissioner of Income Tax, Meerut

The Tribunal set aside the Commissioner of Income-tax's order and restored the assessment order by the Assessing Officer, ruling that the Commissioner's ... Revision u/s 263 by CIT(A) - CIT while setting aside the assessment order held that the sale consideration at ₹ 35,00,000/- for shop was less than the circle rate at ₹ 69,72,402/- paid and that the stamp duty was paid on the said circle rate, therefore, the said circle rate was the most reasonable rate while accepting the sale rate - CIT invoked the provisions of section 50C - whether the provisions of section 50C of the Act are applicable to the assets held as stock-in-trade? - Held that:- The provisions of Section 50C of the Act are not applicable when the shops are treated as stock-in-trade and income from such transaction was held as a business income. Therefore, the ld. CIT was not justified in setting aside the assessment order only on this basis that the AO has not taken the sale value as per section 50C of the Act i.e. the circle rate. We, therefore, are of the view that the ld. CIT was not justified in setting aside the assessment order by invoking the provisions of section 263 of the Act. In the instant case, the assessee furnished all the details relating to the business profit earned and the sale of shops. The AO specifically asked the assessee to show cause as to why the interest should not be allowed proportionately with reference to actual sale of shops as reduced by the gross profit. Accordingly, interest on loans and income from business was worked out. The ld. CIT had not doubted allowable interest worked out by the AO, therefore, he was not justified in observing that the AO accepted the business income without making proper inquiry. Moreover, the ld. CIT had not pointed out how and in what manner the assessment order was erroneous and prejudicial to the interest of the Revenue. He simply stated that the AO had not made the proper inquiry but did not point out which inquiries were to be made but had not been made by the AO. Therefore, by considering the totality of the fact we are of the view that the ld. CIT was not justified in setting aside the assessment order dated 22.12.2010 and directing the AO to frame fresh order. He was also not right in holding that the sale price of the shop should have been taken at circle rate in accordance with the provision of Section 50C of the Act instead of actual sale price disclosed by the assessee and accepted by the AO. Accordingly the impugned order passed by the ld. CIT is set aside and the assessment order framed by the AO is restored. - Decided in favour of assessee. Issues Involved:1. Jurisdiction and validity of the Commissioner of Income-tax's (CIT) action under Section 263 of the Income-tax Act, 1961.2. Applicability of Section 50C to business transactions.3. Estimation of profit on sale of shops.4. Construction of income from advances.5. Construction of income from indirect sources.6. Validity of the CIT's partial revision and setting aside of the assessment order.Issue-wise Detailed Analysis:1. Jurisdiction and Validity of CIT's Action under Section 263:The assessee challenged the CIT's jurisdiction under Section 263, arguing that the original assessment order dated 22.12.2010 was framed after proper inquiry and that the CIT's revision was unjust and devoid of jurisdiction. The CIT contended that the assessment order was erroneous and prejudicial to the interest of the Revenue due to insufficient inquiry by the Assessing Officer (AO). The CIT cited various case laws to support his position that failure to make inquiries renders an order erroneous. However, the Tribunal concluded that the CIT did not adequately demonstrate how the assessment order was erroneous or prejudicial to the Revenue, nor did he specify which inquiries were lacking.2. Applicability of Section 50C to Business Transactions:The CIT invoked Section 50C, considering the sale value of shops at the circle rate of Rs. 69,72,402 instead of the actual consideration of Rs. 35,00,000. The assessee argued that Section 50C, which applies to capital assets, was not applicable as the shops were held as stock-in-trade. The Tribunal supported this view, referencing judicial pronouncements such as CIT Vs Thiruvengadam Investments (P.) Ltd. and CIT Vs Mukesh & Kishor Barot Co-owners, which clarified that Section 50C does not apply to business assets treated as stock-in-trade.3. Estimation of Profit on Sale of Shops:The CIT estimated the profit on the sale of shops at Rs. 20,91,609, considering a minimum margin of 30% in the construction business. The assessee had shown the sale consideration of Rs. 35,00,000 and claimed a loss on the sale after debiting interest expenses. The Tribunal found that the AO had already worked out the allowable interest and business income proportionately and that the CIT did not provide sufficient grounds to challenge the AO's calculations.4. Construction of Income from Advances:The CIT construed income from advances at Rs. 32,50,000, which the assessee had not shown in the income. The Tribunal observed that the CIT did not provide a clear basis for this construction and did not demonstrate how the AO's acceptance of the assessee's treatment was erroneous.5. Construction of Income from Indirect Sources:The CIT construed income from indirect sources at Rs. 65,57,491 based on the assessee's Income & Expenditure Account, which included event management expenses. The Tribunal noted that the CIT did not provide a detailed analysis or evidence to support this construction and that the AO had accepted the assessee's explanations after due inquiry.6. Validity of CIT's Partial Revision and Setting Aside of the Assessment Order:The CIT partially revised and set aside the assessment order, directing the AO to pass a fresh order considering all the points raised. The Tribunal held that the CIT's action was not justified as the AO had conducted proper inquiries and the CIT failed to demonstrate specific errors or prejudices in the AO's order. The Tribunal emphasized that the CIT must have material evidence to substantiate the claim that the AO's order was erroneous and prejudicial to the Revenue.Conclusion:The Tribunal set aside the CIT's order and restored the assessment order framed by the AO. It concluded that the CIT was not justified in invoking Section 263 and that the AO had conducted sufficient inquiries and applied the correct legal principles in the original assessment. The appeal of the assessee was allowed.