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2019 (1) TMI 272
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....tion Officer U/s 55A for AY 2015-16. iv) Violating the settled principle that "where the AO adopted one of the courses permissible in law or where two views are possible and he has taken one view with which the Commissioner does not agree, it cannot be treated that the assessment order is erroneous so as to be prejudicial to the interest of revenue unless the view taken by AO is unsustainable in law." And thereon influencing the discretionary power given U/s 55A and independent state of mind of AO while taking different opinion and that too solely on the basis of opinion of successor AO. v) In considering that the order of AO is erroneous, as the AO has not exercised his discretionary powers of referring the matter to valuation officer U/s 55A while ignoring the other factual matrix for the relevant Assessment Year. vi) Ignoring the valuation report of the registered valuer which is on record of the ACIT. vii) Upholding the action of the successor AO for AY 2015-16 of accepting the valuation report of DVO in which the Land at Vasant Vihar was compared with the land at Safdarjung Enclave while determining the Fair Market Value as at 01.04.1981. ....
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.... Ground floor & Basement Add: cost of construction of Builder Space at first, Second & third floor Rs.35,000,000 a) 3050 Sq. feet each floor for three floors at b) Rs. 2,500 per Sq. feet plus 2300 Sq. feet of stilt area at Rs. 800 per Sq. Feet Rs.24,715,000 Rs.59,715,000 Less Cost of land (30% of indexed cost) Rs.77,95,800 Cost of Original Building (indexed cost of construction) Rs.42,17,400 30% of freehold charge of 823600 Rs.2,47,080 Rs.12,260,880 Rs.4,74,54,720 5. The AO did not find merit in the above submissions of the assessee and observed that free hold charges of Rs. 8,23,600/- were well known to the assessee, much before the filing of the return of income which was originally filed on 30.07.2013 and the assessee could have included the same in the original return or subsequently in his revised return, however, the assessee failed to do the same. The AO rejected the claim of the assessee and assessed the income at Rs. 4,28,18,052/-. Thereafter, the successor AO made a proposal to the ld. Pr. CIT for remedial action u/s 263 of the Act. 6. The ld. Pr....
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....Housing Pvt. Ltd., Second & Third Floor had been sold in assessment year 2014-15 and the First Floor was sold in assessment year 2015-16. It was pointed out that the assessee obtained valuation report of the said property from registered valuer M/s Paramjeet Associates to ascertain the fair market value of the land and structure as on 01.04.1981 for the purpose of Capital Gain Tax. It was also stated that the assessment was framed u/s 143(3) of the Act. Thereafter, the ld. Pr. CIT passed the assessment order on 31.03.2018 and assessed the income at Rs. 4,78,39,660/- after making addition of Rs. 50,21,603/-. It was submitted that only and only an Assessing Officer has powers to pass the assessment order under the relevant provisions of the Income Tax and to make an assessment or reassessment accordingly. Whereas in the present case, the ld. Pr. CIT had passed the assessment order and assessed the income of the assessee. It was stated that the assessment order passed by the ld. Pr. CIT was a non-jurisdictional assessment order and the department cannot take shelter of Section 292B of the Act, since it was not a mere mistake/defect or omission as the assessment order was not inconform....
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....the value of capital asset as given by the registered valuer and therefore, following one of the two course permissible in law, he decided not to refer the matter to the valuation officer u/s 55A of the Act. It was also stated that the assessee had filed detailed reply on the capital gain earned vide letter dated 06.07.2015 which also included the valuation report, land allotment documents, transfer and freehold documents alongwith copy of capital gain account with SBI. The same was considered by the AO thoroughly before allowing some part of the claim and disallowing the other. A reference was made to para 2.2 of the assessment order passed u/s 143(3) of the Act. It was contended that the AO had passed the speaking order after applying his mind on the valuation report submitted by the assessee and approved/upheld the same, as the AO had reproduced/mentioned the cost of land and structure in the body of the assessment order which was the same as given in the valuation report of the assessee. A reference was made to para 2.1 of the assessment order. It was contended that the assessment order passed by the AO could not have been treated as erroneous order or prejudicial to the intere....
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....ove stated events. It was further stated that the ld. Pr. CIT completed the proceedings without appreciating the real facts, solely on single aspect i.e. assessment order for the assessment year 2015-16 and majorly without giving sufficient opportunity to the assessee. Therefore, the impugned order passed by the ld. Pr. CIT deserves to be set aside. The reliance was placed on the following case laws: • Vipul T. Joshi vs. DCIT (50 CCH 0032) [Ahd. Tribl] • Antala Sanjay Kumar Ravji Bhai vs. CIT (135 ITD 0506) [Rajkot Trib] • Roshan Lai Vegetable Products (P) Ltd. vs. ITO (51 SOT 0001) [Asr. Trib] • Malabar Industrial Co. Ltd. vs. CIT (159 CTR 0001) [SC] • CIT and Another vs. Saravana Developers (289 CTR 0550) [Karl] • Indus Best Hospitality Realtors (P) Ltd. vs. PCIT (52 CCH 0565) [Mum Trib] • CIT vs. Sunbeam Auto Ltd. {(2011) 332 ITR 0167}(Del) • DIT vs. Jyoti Foundation {(2013.) 357 ITR 0388} (Del) • CIT vs. ASHISH RAJPAL {(2010) 320 ITR 0674} (Del) • CIT vs. Vikas Polymers {(2012) 341 ITR 0537} (Del) • CIT vs. ANIL KUMAR SHARMA {(2011) 335 ....
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.... • Paras Theatre vs. ITO {15 TTJ 0144} [Chd Trib] • CIT vs. Tek Chand Saini {325 ITR 0343} [P & H] • CIT vs. Late Bhakt Mohan {89 CCH 0045} [All] • CIT Vs Green world Corporation [314 ITR 0081] 11. In his rival submissions, the ld. CIT DR strongly supported the impugned order passed by the ld. Pr. CIT and submitted that as per the provisions contained in Explanation 2 to Section 263 of the Act inserted by the Finance Act 2015 w.e.f. 01.06.2015. The ld. Pr. CIT may invoke the provisions u/s 263 of the Act if the order was passed without making enquiries or verification which should have been made or the order had not been made in accordance with any order, direction or instruction issued by the CBDT or the order had not been passed in accordance with any decision which was prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. Therefore, the proceedings initiated by the ld. Pr. CIT were valid. The reliance was placed on the following case laws: • Deniel Merchants Pvt. Ltd. Vs ITO in ITA No. 2396/2017, order dated 29.11.2017 (SC) â....
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....ised claim of the assessee and had taken a possible view. 13. On a similar issue, the Hon'ble Supreme Court in the case CIT Vs Greenworld Corporation (2009) 314 ITR 81 held as under: "The Income-tax Officer, while passing an order of assessment performs a judicial function. A revision application lies before the Commissioner. It is trite that the jurisdiction exercised by the revisional authority pertains to his appellate jurisdiction. The jurisdiction under section 263 can be exercised only when both the following conditions are satisfied (i) the order of the Assessing Officer should be erroneous, and (ii) it should be prejudicial to the interests of the Revenue. These conditions are conjunctive. An order of assessment passed by the Assessing Officer should not be interfered with only because another view is possible. The Commissioner, or for that matter, any other higher authority, may have supervisory jurisdiction over the Assessing Officer but it difficult to conceive that even the merits of the decision should be discussed and should be rendered by the higher authority, who is a supervisory authority. It is one thing to say that while making the orders of ....