2022 (11) TMI 240 - AT - Income Tax

Tribunal quashes CIT's order under Section 263, upholds AO's reassessment. Delay condoned. Clear reasoning needed for Section 263.

Sri Sumitro Das { legal heir of late Sukumar Das } Versus Commissioner of Income Tax Kol – V, Kolkata

The Tribunal allowed the appeal, quashing the CIT's order under Section 263. The reassessment order passed by the AO was found to be valid and properly ... Revision u/s 263 - AO passed the reassessment order u/s 147/143(3) - Capital gain computation - error in computation of cost of acquisition - AO Replaced the full sale consideration with deemed sale consideration contemplated u/s 50C of the Act i.e., the amount equivalent to the sum for which stamp duty was paid - HELD THAT:- It is pertinent to observe that the deemed sale consideration u/s 50C of the Act is not an absolute figure. It has to be further verified u/s 50C sub-Clause (2) for determining the market rate all these aspects are to be examined. It is also pertinent to observe that the cost of acquisition was on 22/11/2004. The indexation with appreciation of cost of acquisition is calculated for taking a final figure for the purpose of reducing it from full sale consideration assumed u/s 50C of the Act. From the finding of AO it is to be seen that all these consideration must have gone by. It is not a mathematical formula. He has taken a particular cost of acquisition on the basis of valuer’s report and thereafter calculated the capital gain. This calculation may have been not matched with the understanding of the ld. Commissioner but this cannot be a reason to set aside the assessment for framing the same de-novo. Therefore, on this point, we are of the view that the impugned order passed by the ld. Commissioner is not sustainable. It is to be further notice that the ld. CIT himself failed to conduct any enquiry in the finding extracted supra pointing out as to why the valuer’s report considered by the Assessing Officer for taking cost of acquisition is erroneous. For taking action u/s 263 of the Act, twin conditions should be fulfilled i.e., the order should be erroneous inasmuch as it causes prejudice to the revenue. From the finding of the ld. CIT, it appears that the ld. CIT has erred in construing the position of law. As in the case of DG Housing Projects Ltd. [2012 (3) TMI 227 - DELHI HIGH COURT] has held that the ld. Commissioner should not simply relegate the point that the assessment order is erroneous to the AO. Commissioner, after analyzing the record, ought to have recorded a categorical finding and provided valid reasons as to how the assessment order is erroneous. In other words, the ld. Commissioner should have recorded a finding about the error that had crept in which required action u/s 263 - Therefore, in the absence of this finding, we are of the view that the impugned order is not sustainable and hence the same is quashed. Appeal of the assessee is allowed. Issues Involved:1. Condonation of delay in filing the appeal.2. Validity of the notice issued under Section 148 of the Income Tax Act.3. Legitimacy of the reassessment order under Section 147/143(3).4. Validity of the revisionary proceedings under Section 263 by the Commissioner of Income Tax (CIT).Issue-wise Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The appeal was time-barred by 14 days. The delay was due to the assessee's health issues, substantiated by medical records and an affidavit. The Tribunal, satisfied with the reasons provided, condoned the delay and proceeded to decide the appeal on its merits.2. Validity of the Notice Issued Under Section 148:The notice under Section 148 was issued by the Income Tax Officer (ITO), Ward-14(1), Kolkata, to reopen the assessment for the Assessment Year 2007-08. The reasons for reopening included the sale of two flats by the assessee at a price lower than the market value determined by the Registrar of Assurance, thus attracting capital gains tax under Section 50C. The Tribunal examined the record and found that the notice was validly issued by the ITO, Ward-14(1), Kolkata, who also passed the reassessment order. The assessee's contention that the notice was invalid due to jurisdictional issues was dismissed as the assessee failed to provide sufficient evidence.3. Legitimacy of the Reassessment Order Under Section 147/143(3):The reassessment order was passed on 22/12/2011, determining a short-term capital gain based on the deemed sale consideration under Section 50C. The Assessing Officer (AO) replaced the sale consideration declared by the assessee with the market value determined by the Registrar of Assurance. The AO computed the capital gain by deducting the cost of acquisition, as per the valuer's report, from the deemed sale consideration. The Tribunal found that the AO had conducted a proper inquiry and applied his mind to the facts and circumstances of the case.4. Validity of the Revisionary Proceedings Under Section 263 by the CIT:The CIT initiated revisionary proceedings under Section 263, setting aside the reassessment order on the grounds that the AO did not consider the issue of short-term capital gain of Rs. 13,99,866/-. The CIT directed the AO to adjudicate the matter afresh. The Tribunal analyzed the principles governing Section 263, emphasizing that the CIT must record satisfaction that the AO's order is erroneous and prejudicial to the interests of the revenue. The Tribunal found that the AO had properly computed the capital gain, considering the cost of acquisition and the deemed sale consideration under Section 50C. The CIT failed to provide a valid reason for considering the AO's computation erroneous. The Tribunal concluded that the CIT's order lacked a categorical finding and valid reasons, rendering the revisionary proceedings under Section 263 unsustainable.Conclusion:The Tribunal allowed the appeal, quashing the CIT's order under Section 263. The reassessment order passed by the AO was found to be valid and properly executed, and the delay in filing the appeal was condoned. The Tribunal emphasized the necessity for the CIT to provide a clear and justified reasoning for invoking Section 263, which was absent in this case.