2021 (9) TMI 766 - AT - Income Tax

Tribunal quashes order under Section 263, finding assessment not erroneous. Assessee appeal allowed.

Naina Saraf Versus Pr. CIT-2, Jaipur.

The Tribunal quashed the order passed under Section 263 by the Pr.CIT, holding that the assessment order was neither erroneous nor prejudicial to the ... Revision u/s 263 - non-invoking the provision of S.56(2)(vii)(b) by AO rendered the assessment order erroneous in so far as it is prejudicial to the interest of the revenue - Stamp Duty Value (SDV) was determined more as against the declared purchase consideration therefore, consequently, the difference amount was to be treated as income from other sources - Assessee having having 50% share - scope of pre amended law - HELD THAT:- The allotment letter provided detailed specification of the property, its identification and terms of the payment, providing possession of the subjected property in the stipulated period and many more. Evidently the seller (builder) has agreed to sale and the allottee buyer (assessee) has agreed to purchase the flat for an agreed price mentioned in the allotment letter. What is important is to gather the intention of the parties and not to go by the nomenclature. Thus, there being offer and acceptance by the competent parties for a lawful purpose with their free consent, we find that all the attributes of a lawful agreement are available as per provisions of the Indian Contract Act, 1872. We also find that such agreement was acted upon by the parties and pursuant to the allotment letter, the assessee paid a substantial amount of consideration of ₹ 45,26,233/-, as early as in the year 2008 itself. We do not find merit in the contention of the ld. CIT that it was a mere provisional attachment which was subject to further changes because of the unexpected happening which may be instructed by the approving authority, resulting into increase or decrease in the area and so on because it is a standard practice so as to save the seller (builder) from the unintended consequences - we are convinced that the parties had already entered into an agreement by way of the allotment letter in on 11.11.2009 falling in A.Y. 2010-11. There was a valid and lawful agreement entered by the parties long back in A.Y. 2010-11 only, when the subject property was transferred and substantial obligations were discharged. The law contained in S. 56(2)(vii)(b) as stood at that point of time, did not contemplate a situation of a receipt of property by the buyer with for inadequate construction. Hence, we are of the considered view that the ld. Pr.CIT erred in applying the said provision. Because of the mere fact that the flat was registered in the year 2014 falling in A.Y. 2015-16 on the fulfillment of the conditions, the amended provision of S. 56(2)(vii)(b)(ii) could not be applied - See BAJRANG LAL NAREDI [2020 (1) TMI 1359 - ITAT, RANCHI]. We are not in agreement with the view taken by the ld. Pr.CIT holding the applicability of S. 56(2)(vii)(b)(ii) in the facts and circumstances of the case and therefore we hold that the assessment order, subjected to revision u/s 263, is not erroneous and prejudicial to the interest of the revenue - Decided in favour of assessee. Issues Involved:1. Invocation of Section 263 of the Income Tax Act, 1961.2. Assumption of jurisdiction under Section 263.3. Application of Section 56(2)(vii)(b)(ii) and its proviso.4. Validity of the assessment order dated 21.12.2017.Detailed Analysis:1. Invocation of Section 263 of the Income Tax Act, 1961:The assessee appealed against the order of the Principal Commissioner of Income Tax (Pr.CIT) invoking Section 263, arguing that the assessment order dated 21.12.2017 was neither erroneous nor prejudicial to the interest of the revenue. The Pr.CIT contended that the Assessing Officer (AO) failed to apply Section 56(2)(vii)(b)(ii), thereby rendering the assessment order erroneous and prejudicial to the revenue.2. Assumption of Jurisdiction under Section 263:The Pr.CIT assumed jurisdiction under Section 263 by asserting that the AO did not consider the implications of Section 56(2)(vii)(b)(ii). The assessee argued that the AO had examined all relevant details during the assessment proceedings and that the Pr.CIT’s action was merely a change of opinion, which is not permissible under Section 263. The Tribunal noted that the AO had issued notices and reviewed documents related to the property purchase, indicating that the AO had applied his mind to the issue.3. Application of Section 56(2)(vii)(b)(ii) and its Proviso:The Pr.CIT held that the difference between the stamp duty value and the purchase consideration should be treated as income from other sources under Section 56(2)(vii)(b)(ii). The assessee contended that the transaction should be governed by the pre-amended law, which did not cover inadequacy in consideration. The Tribunal found that the agreement for the property was entered into in A.Y. 2010-11, and substantial consideration was paid before the amendment. Therefore, the amended provision could not be applied retrospectively.4. Validity of the Assessment Order Dated 21.12.2017:The Tribunal examined whether the AO’s order was erroneous and prejudicial to the revenue’s interest. It concluded that the AO had taken a possible view based on the facts and applicable law at the time. The Tribunal also noted that the Pr.CIT’s action was an impermissible substitution of opinion. The Tribunal cited various judicial precedents, including Malabar Industrial Co. Ltd. v/s CIT and CIT v/s Max India Ltd., to support its conclusion that the AO’s order was not erroneous or prejudicial to the revenue.Conclusion:The Tribunal quashed the order passed under Section 263 by the Pr.CIT, holding that the assessment order was neither erroneous nor prejudicial to the interest of the revenue. Consequently, the other grounds raised by the assessee became infructuous and required no further adjudication. The appeal was allowed in favor of the assessee.