2022 (12) TMI 941 - AT - Income Tax

Tribunal upholds AO's order, dismisses jurisdiction under section 263, ruling on tax liability issue

The Tribunal allowed the appeal, stating that the Assessing Officer's order was not erroneous or prejudicial to the Revenue's interests. It was held that ... Revision u/s 263 - As per CIT no enquiry which has been made by the AO on the applicability of provisions of section 115 BBE - HELD THAT:- The order passed by the AO is not erroneous and prejudicial to the interests of the Revenue. The issue which was the subject matter of 263 proceedings has been specifically discussed by the AO during the course of assessment and therefore it is not a case where there has been no enquiry which has been made by the AO on the applicability of provisions of section 115 BBE in the instant facts or that there has been a non-application of mind by the AO during the course of assessment proceedings. As observed that the amendment to provisions of section 115 BBE of the Act came into effect after survey was conducted on the assessee, and consequently, in the light of judicial precedents highlighted above, this is not a fit case for invoking the provisions of section 263 of the Act. Appeal of the assessee is allowed. Issues:1. Validity of order passed under section 263 of the Income Tax Act, 1961.2. Correct application of provisions of section 115BBE of the Act. Issue 1: Validity of order passed under section 263 of the Income Tax Act, 1961:The case involved an appeal against the order passed under section 263 of the Income Tax Act, 1961, setting aside the assessment order. The Principal Commissioner initiated proceedings under section 263 based on the disclosure of survey income by the assessee. The contention was that the Assessing Officer (AO) did not correctly apply the provisions of law while finalizing the assessment under section 143(3) of the Act. The Principal Commissioner held that the AO should have computed the tax liability under section 115BBE of the Act. The assessee argued that the AO did make specific inquiries and the issue of taxability under sections 69A/69C and the applicability of section 115BBE were duly examined during assessment proceedings. The Tribunal noted that the AO issued a show cause notice and the assessee provided a detailed reply, which was accepted by the AO. Judicial precedents were cited to support the argument that the amendment to section 115BBE was not applicable to surveys conducted before a certain date. The Tribunal concluded that the order passed by the AO was not erroneous or prejudicial to the interests of the Revenue, as the issue was adequately addressed during assessment, and the amendment to section 115BBE came into effect after the survey was conducted.Issue 2: Correct application of provisions of section 115BBE of the Act:The Tribunal analyzed various judicial decisions to determine the correct application of section 115BBE of the Act. It was highlighted that the amendment to this section was not in effect during the survey conducted on the assessee. The Tribunal emphasized that the applicability of the amended provisions, which led to the Principal Commissioner assuming jurisdiction under section 263, was a highly debatable issue. The Tribunal referenced cases where the Assessing Officer's order was deemed correct despite the Principal Commissioner's invocation of revisionary jurisdiction. The Tribunal stressed the importance of specific findings regarding the applicability of relevant provisions and how the explanation provided by the assessee was considered. Ultimately, the Tribunal concluded that the order passed by the AO was not erroneous or prejudicial to the interests of the Revenue, and the provisions of section 263 of the Act were wrongly invoked.In conclusion, the Tribunal allowed the appeal of the assessee, emphasizing that the AO's order was not erroneous or prejudicial to the Revenue's interests. The judgment provided a detailed analysis of the issues raised, including the correct application of provisions under section 115BBE of the Income Tax Act, 1961.