2023 (4) TMI 1346 - AT - Income Tax

Section 263 revision dismissed as AO's capital expenditure allowance was correct under Gujarat HC ruling on public utility services

The ITAT Ahmedabad dismissed the Principal CIT's revision order under Section 263. The CIT had alleged that the AO erroneously allowed capital expenditure ... Revision u/s 263 - as per CIT AO having allowed capital expenditure without properly examining the expenses in view of provisions of Sec. 13(8) - HELD THAT:- Section 13(8) of the Act states that the exclusion provided in section 11 or section 12 shall not be available to the assessee, if the first proviso to section 2(15) of the Act becomes applicable in case of such person. However, we observe that at the time when the 263 proceedings were initiated by the Principal CIT, the jurisdictional Gujarat High Court had already decided the issue in favour of the assessee and had held that assessee-society constituted under Gujarat Town Planning and Urban Development Act, 1976, to execute works in connection with supply of water, disposal of sewerage and provision of other services and amenities, could be said to be providing general public utility services within the meaning of section 2(15). Further, subsequently the Supreme Court of India also affirmed/upheld the view of the jurisdictional Gujarat High Court in the aforesaid case. Accordingly, the order passed by the AO cannot be held to be erroneous and prejudicial to the interest of Revenue. Accordingly, the 263 order passed by the ld. Principal CIT is dismissed. Decided in favour of assessee. Issues:1. Validity of invoking provisions of Sec. 263 of the Act by the CIT (Exemptions).2. Allowance of capital expenditure by the AO without proper examination.3. Consideration of jurisdictional High Court judgment by the AO.4. Exercise of revisionary powers by the CIT (Exemptions).5. Disallowance of capital expenditure directed by the CIT (Exemptions).Analysis:Issue 1: Validity of invoking provisions of Sec. 263The assessee appealed against the CIT (Exemptions) order under Sec. 263 of the Act. The Principal CIT observed that the AO allowed capital expenditures without proper examination in light of Sec. 13(8) of the Act. The Principal CIT held the AO's order as erroneous and prejudicial to revenue. The assessee argued that the Gujarat High Court and the Supreme Court had already decided in favor of the assessee's charitable status, making the AO's decision valid. The Tribunal agreed with the assessee, stating that the order was not erroneous, leading to the dismissal of the CIT's order.Issue 2: Allowance of capital expenditureThe AO allowed capital expenditure despite withdrawal of deduction claim under Sec. 13(8) of the Act. The Principal CIT found this allowance erroneous and prejudicial to revenue, as the AO did not properly examine the expenses. The assessee contended that the Gujarat High Court had already ruled in their favor, making the AO's decision valid. The Tribunal upheld the assessee's argument, stating that the AO's decision was not erroneous.Issue 3: Consideration of jurisdictional High Court judgmentThe Principal CIT considered the AO's allowance of capital expenditure as erroneous despite the AO following a favorable Gujarat High Court judgment. The assessee argued that the High Court's decision validated the AO's actions. The Tribunal agreed with the assessee, stating that the AO's decision was not erroneous based on the High Court's ruling.Issue 4: Exercise of revisionary powersThe Principal CIT invoked revisionary powers despite the AO's thorough inquiry and analysis before passing the assessment order. The assessee argued that the High Court's decision supported the AO's actions. The Tribunal concurred with the assessee, stating that the AO's decision was not erroneous, leading to the dismissal of the CIT's order.Issue 5: Disallowance of capital expenditureThe Principal CIT directed the AO to disallow capital expenditure, ignoring the AO's reliance on the High Court judgment. The assessee argued that the High Court's decision validated the AO's actions. The Tribunal agreed with the assessee, stating that the AO's decision was not erroneous, resulting in the allowance of the assessee's appeal.In conclusion, the Tribunal dismissed the CIT's order, allowing the appeal of the assessee based on the validity of the AO's decisions in light of the High Court and Supreme Court judgments.