2018 (8) TMI 1771 - AT - Income Tax

Tribunal cancels tax order for lack of material, upholds taxpayer's appeal, rejects differing rates directive.

Bondalapati Prasad Babu Versus Income Tax Officer Ward-2 (2) Visakhapatnam

The Tribunal canceled the order passed by the Principal Commissioner of Income Tax (Pr.CIT) under section 263, finding it lacked tangible material and was ... Revision u/s 263 - short term capital gains by adopting the Stamp duty and Registration rates of Government of Andhra Pradesh and did not give any credit for the improvements made by the assessee - HELD THAT:- Valuation for cost of construction to the departmental valuation cell, who in turn values the cost of construction applying plinth area rates of CPWD. Apart from the cost of construction of superstructure, the other additions of interior works, exterior works etc. and other improvements made by the assessee also required to be taken while estimating the cost of construction of the super structure. CIT merely arrived at the short term capital gains by adopting the Stamp duty and Registration rates of Government of Andhra Pradesh and did not give any credit for the improvements made by the assessee. The AO has accepted the cost of acquisition of the property at ₹ 10,02,650/- which was declared by the assessee in the reassessment proceedings, CIT did not bring any tangible material to show that that the cost of acquisition accepted by the AO is erroneous. We hold that the Ld.Pr.CIT has invoked the jurisdiction u/s 263 without any tangible material and on difference of opinion. Therefore, the order passed by the Ld.Pr.CIT u/s 263 is unsustainable, accordingly, we cancel the order passed by the Ld.Pr.CIT u/s 263 and allow the appeal of the assessee. - Decided in favour of assessee. Issues Involved:1. Validity of the order passed under section 263 by the Principal Commissioner of Income Tax (Pr.CIT).2. Whether the assessment order was erroneous and prejudicial to the interest of the revenue.3. Determination of long-term capital gains versus short-term capital gains.4. Cost of acquisition and cost of construction rates used for computation of capital gains.Detailed Analysis:1. Validity of the order passed under section 263 by the Principal Commissioner of Income Tax (Pr.CIT):The appeal was filed by the assessee against the order passed under section 263 by the Pr.CIT, which revised the assessment order completed under section 143(3) read with section 147. The Pr.CIT found discrepancies in the computation of capital gains and directed the AO to recompute the gains using specific rates for the cost of acquisition and construction.2. Whether the assessment order was erroneous and prejudicial to the interest of the revenue:The Pr.CIT considered the assessment order erroneous and prejudicial to the interest of the revenue because the AO accepted the income returned by the assessee without proper verification of the cost of acquisition and construction. The Pr.CIT believed that the assessee should have admitted the sale of land under long-term capital gains, given the property was held for more than three years. However, the Tribunal found that the AO had examined the details provided by the assessee and completed the assessment after due verification.3. Determination of long-term capital gains versus short-term capital gains:The assessee admitted the capital gains under short-term capital gains, which the Pr.CIT found erroneous. The Tribunal noted that although the admission was incorrect, it was not prejudicial to the interest of the revenue because the tax rate for short-term capital gains is higher (30%) compared to long-term capital gains (20%) and no indexation benefit is available for short-term capital gains.4. Cost of acquisition and cost of construction rates used for computation of capital gains:The Pr.CIT directed the AO to adopt the cost of acquisition at Rs. 60 per sq. yard based on a previous ITAT order in a different case and the cost of construction at Rs. 370 per sq. ft for RCC and Rs. 230 per sq. ft for ACC as per the Stamp Duty & Registration Manual. The assessee argued that these rates were incorrect and did not reflect the actual costs incurred. The Tribunal agreed with the assessee, noting that the property locations and construction periods were different, and the rates applied by the Pr.CIT were not justified. The Tribunal held that the Pr.CIT did not provide tangible material to prove the AO's acceptance of the cost of acquisition and construction was erroneous.Conclusion:The Tribunal concluded that the Pr.CIT invoked section 263 without any tangible material and based on a difference of opinion rather than a substantive error. The Tribunal found that the AO had duly verified the details and completed the assessment appropriately. Consequently, the order passed by the Pr.CIT under section 263 was canceled, and the appeal of the assessee was allowed.