2024 (8) TMI 1560 - AT - Income Tax

PCIT cannot use section 263 to direct fresh DVO report when none existed initially, lacks jurisdiction to extend time limitations

ITAT Bangalore allowed the assessee's appeal against PCIT's revision order under section 263. The tribunal held that PCIT cannot invoke section 263 to ... Revision u/s 263 - non-receipt of the valuation report from the District Valuation Officer (DVO) under section 142A - HELD THAT:- Even at the time of issuing the notice u/s 263 of the Act, there is no DVO report available and therefore, we are of the opinion that the PCIT cannot invoke the provisions of section 263 of the Act to get a fresh DVO report and thereafter make the assessment. The findings of the ld. PCIT, is not within the powers vested with him since there is no error in the assessment order and the ld. PCIT also cannot extend the time for getting the report u/s 142A of the Act when the DVO had failed to invoke sub-clause (5) of section 142A of the Act. When there is ample power vested with the DVO, the DVO ought to have sent a report based on his estimation, which they failed to do so. Therefore, the present order by the PCIT directing the ld. AO to get fresh report from the DVO u/s 142A of the Act and thereafter adopt the value in the assessment order is nothing but a perverse finding and also without jurisdiction. By passing this order the PCIT had indirectly extended the period of limitation which the AO does not have and therefore we are of the view that the provision 263 could not be pressed into service. Direction to the AO to get a fresh DVO report once again and pass a fresh assessment order is without jurisdiction. PCIT in order to save the limitation prescribed u/s 153 of the Act had invoked the provision 263 of the Act, therefore the order of the PCIT is not sustainable. Appeal of the assessee is allowed. The core legal questions considered in this judgment revolve around the validity and scope of the revisionary powers under section 263 of the Income Tax Act, 1961 ('the Act'), specifically:Whether the order of assessment passed under section 143(3) of the Act without the valuation report from the District Valuation Officer (DVO) can be considered erroneous and prejudicial to the interest of revenue, thereby justifying revision under section 263.The procedural and substantive correctness of invoking section 263 when the DVO failed to submit a valuation report due to non-cooperation by the assessee.The extent of powers and duties of the Valuation Officer under section 142A of the Act, including the ability to estimate value in absence of cooperation from the assessee.Whether the Principal Commissioner of Income Tax (PCIT) can direct a fresh reference to the DVO and effectively extend the limitation period by invoking section 263.These issues are interlinked and focus on the interplay between sections 142A and 263 of the Act, and the procedural fairness and jurisdictional limits of revisionary powers.Issue-wise Detailed Analysis:1. Validity of invoking section 263 against an assessment order passed without DVO reportLegal framework and precedents: Section 263 empowers the PCIT to revise an assessment order if it is 'erroneous' and 'prejudicial to the interest of revenue.' The assessment order must be examined on whether it suffers from an error apparent on the face of the record. Section 142A empowers the AO to refer valuation matters to the DVO, who has powers akin to those under section 38A of the Wealth Tax Act, 1957, including the power to estimate value even in the absence of cooperation from the assessee.Court's interpretation and reasoning: The Court noted that the AO had duly made a reference to the DVO under section 142A for valuation of the hotel construction cost. The DVO issued notices to the assessee, but the assessee did not cooperate. Consequently, the DVO returned the reference without submitting a report. The AO completed the assessment under section 143(3) without the DVO report but indicated that a rectification would be made upon receipt of the report.The PCIT invoked section 263, holding the assessment erroneous and prejudicial because it was passed without the DVO report, and directed a fresh reference to the DVO. The Tribunal held that this was beyond the scope of section 263 because:The AO had followed the correct procedure by making the reference.The assessment order was not erroneous on the face of the record as the AO did not have the DVO report at the time of assessment.The DVO, empowered under section 142A(5), could have estimated the value even without cooperation but failed to do so.The PCIT cannot compel the AO to seek a fresh report or extend the limitation period by invoking section 263.Application of law to facts: Since the valuation report was not available, and the AO could not have considered it, the assessment order was not erroneous or prejudicial. The PCIT's direction to reopen the assessment and obtain a fresh DVO report was held to be without jurisdiction.Treatment of competing arguments: The assessee argued that the absence of a DVO report at the time of assessment meant the order was not erroneous. The revenue contended that the assessment was incomplete and prejudicial without the valuation. The Tribunal sided with the assessee, emphasizing the statutory powers of the DVO to estimate value and the procedural correctness of the AO's action.Conclusion: The invocation of section 263 was not justified in the absence of an erroneous or prejudicial order. The PCIT's order was set aside.2. Powers and duties of the Valuation Officer under section 142ALegal framework: Section 142A(5) authorizes the Valuation Officer to estimate value to the best of his judgment if the assessee does not cooperate. The DVO has all powers under section 38A of the Wealth Tax Act, 1957, including summoning and inspection powers.Court's reasoning: The Court stressed that the DVO had sufficient statutory powers to proceed with valuation even without cooperation. The failure of the DVO to submit any report was a procedural lapse on their part, not a deficiency in the AO's assessment order.Application: The DVO's failure to act under section 142A(5) meant no valuation report was available. The AO could not be faulted for completing assessment without the report. The PCIT cannot remedy this procedural failure by revising the assessment under section 263.Conclusion: The DVO's non-submission of report does not render the assessment order erroneous or prejudicial; the DVO should have exercised his power to estimate value.3. Jurisdictional limits of PCIT under section 263 and extension of limitationLegal framework: Section 263 is a revisionary power, not an appellate power, and cannot be used to gather fresh evidence or extend limitation periods.Court's reasoning: The PCIT's direction to the AO to obtain a fresh DVO report and pass a fresh assessment order effectively extended the limitation period, which the AO does not possess. The Tribunal held this as a perverse and unauthorized exercise of power.Application: The PCIT cannot invoke section 263 to circumvent statutory limitation or procedural lapses by other authorities (DVO). The revisionary power must be exercised only when the assessment order is clearly erroneous and prejudicial.Conclusion: The PCIT's order was beyond jurisdiction and unsustainable.4. Other grounds raised by the assesseeSince the Tribunal set aside the PCIT's order on jurisdictional and substantive grounds, it declined to adjudicate other contentions raised by the assessee.Significant holdings:'The statute gives powers to the valuation officer to get details from the assessee in order to ascertain the value of the property and if the assessee had not cooperated with the valuation officer by furnishing the required details, then the valuation officer has every power to estimate the value to his best judgement assessment.''The assessment order is not an erroneous one since on the date of passing the assessment order, the ld. AO considered all the details and in fact he had sent a reference to the DVO u/s 142A of the Act to send their report in order to make the assessment, which the DVO failed to execute the same.''The findings of the ld. PCIT ... is not within the powers vested with him since there is no error in the assessment order and the ld. PCIT also cannot extend the time for getting the report u/s 142A of the Act when the DVO had failed to invoke sub-clause (5) of section 142A of the Act.''By passing this order the PCIT had indirectly extended the period of limitation which the AO does not have and therefore we are of the view that the provision 263 of the Act could not be pressed into service.'Core principles established include that the revisionary jurisdiction under section 263 is limited to cases where the assessment order is erroneous and prejudicial to revenue and cannot be invoked to remedy procedural lapses by other authorities or to extend limitation periods. The Valuation Officer's statutory powers under section 142A include the ability to estimate value in absence of cooperation, and failure to exercise these powers does not render the assessment order erroneous.The final determination was that the PCIT's order under section 263 was without jurisdiction and unsustainable, and the appeal of the assessee was allowed, setting aside the revisionary order. The Tribunal emphasized adherence to statutory procedures and limits of revisionary powers, thereby protecting the assessee's rights against arbitrary reopening of assessments.