TaxTMI 
TaxTMI 
2024 (2) TMI 863
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....-6 Delhi which is against the principal of natural justice and bad in law. 3. That on the facts and circumstances of the case and in law, the Ld. Pr. CIT has erred in holding that "the original assessment order passed u/s 143(3) is erroneous in so far as it is prejudicial to the interest of the revenue". 4. That on the facts and circumstances of the case and in law, the Ld. Pr.CIT has erred in holding that the Ld. AO has "failed to verify the issue", without adequately perusing the process followed and information/documents asked by the Ld. AO, during the assessment proceedings. 5. That on the facts and circumstances of the case and in law, the Ld. Pr.CIT has erred in directing the Ld. AO to reverify and tax the particular transaction just because of "difference of opinion" framed on same set of documents as reviewed by the Ld. AO during the assessment proceedings." 3. For the sake of brevity and ready reference the order of the ld. PCIT passed u/s. 263 is reproduced below: The assessee filed original ITR on 30/3/2016 declaring returned income of Rs. 14,000/- The case was selected for limited scrutiny through CASS, wherein verification of sale consideration of property was....
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....sehold property was physically transferred by the assessee in the name of M/s VTS IT Solutions LLP. The Section 45(1) of the Income Tax Act, 1961, provides that' any profit or gains arising from the transfer of a capital asset effected in the previous year shall, save as provided in /sections 54, 54B, 54D, 54E, 54BA, 54EB, 54F, 54G and 54H / be chargeable to income-tax under the head 'Capital gains', and shall be deemed to be the income of previous year in which the transfer took place. ' Further, the argument of assessee that a certain part of sale consideration was not received by them, is not supported by registered sale deed. As in page 4 of the said deed, it was also mentioned that --- 'there is now no balance due towards the Transferee to be paid to the Transferor in respect of the said property'. The assessee is following mercantile system of accounting, wherein the transactions are recognised as and when they take place. Hence the assessee was required to recognise the revenue on the above mentioned transaction and should have offered the capital gain arising out of such transfer, for taxation purpose. Further, while verifying the authenticity of t....
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....A.Y. 2015-16 and the order passed u/s 143(3) of the Act should not be revised and the case should not be set aside to the Assessing Officer, for determination of taxable income under the head capital gain on a/c of transfer of property by the assessee, against a consideration received by them. The said notice was duly served on the assessee. Submission on behalf of the Assessee : The assessee company filed a letter dated 27/9/2019, wherein they requested for adjournment of the case for 15 days, citing the reason that the counsel of assessee is out of city and it is not possible for item to present the case on hearing date, i.e. 27/9/2019. The request of assessee was accepted and hearing was re-fixed for 23/10/2019 and same was communicated to the assessee on 15/10/2019 by the official e-mail id. [email protected]. The assessee did not comply and as on date no reply received from the assessee, with regard to show cause notice served upon them. Determination: I have carefully considered and examined the case records and assessment order of the AO u/s 143(3) dated 4/5/2017. The registered sale deed, which is part of assessment record, clearly shows that there w....
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....le" or "otherwise" as per the decision of the court. d. Post making due enquiry, the Ld. AO concluded that the transaction is not taxable in the year under consideration and passed the order accordingly on 04th May 2017. e. The Ld. Pr. CIT has picked up the case u/s 263 and issued a show notice on 19th Sept 2019 stating that "assessing officer failed to verify these facts in his assessment order dated 4.5.2017 passed u/s 143(3) of the I T Act 1961..." f. Unfortunately assessment records were misplaced by the appellant and the appellant has filed an application before jurisdictional AO and with PR. CIT asking for the permission to inspect the assessment records and to take copy of the same. g. The Ld. PR. CIT, without disposing of our application and giving us chance to inspect the assessment records, has allegedly issued a notice through email fixing the date of hearing and then passed the order ex-parte in hurry. 2. Ground no 2 "That the Ld. PR. CIT has erred in passing the order without giving due opportunity of being heard to the appellant, * Because, the appellant had not received any alleged email for re-fixing the matter; * Because the appellant has made a req....
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.... 266) in paragraph No.17 laying down the aforesaid principle held as under "it is well settled solitary principle that if statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. The said principle of law was further reiterated in the case of Cherrukurimani Vs. Chief Secretary Government of Andhra Pradesh and others (3 2015 13 SCC 722), wherein, again in paragraph No.14, the aforesaid principle has been reinforced by the Hon'ble Supreme Court holding that "where law prescribe a thing to be done in a particular manner following a particular procedure, it shall have to be done in the same manner following the provisions of law without deviating from the prescribed procedure. 2.4 Opportunity of being heard is to granted before passing any order u/s 263 of the Act, which the Ld. Pr. CIT failed to grant. 3.0 For Ground no 1 That on the facts and circumstances of the case and in law, the Ld. Pr. CIT has erred in initiating the proceedings under section 263 of the Act and that the order passed by the Ld. Pr. CIT is bad in law and uncalled for. 3.1 The Ld. PR. CIT has initiated the proceedings under section 26....
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....difference of opinion" framed on same set of documents as reviewed by the Ld. AO during the assessment proceedings. The current order by Ld. AO is not erroneous as much as the Ld. AO has asked for all the relevant details and documents and have formed an opinion based on the documents before him. In the current case, the Ld. Pr. CIT has framed an opinion on similar set of documents and information that the transaction should be liable for taxed during the year under consideration rather the decision of Ld. AO who has taken affidavit and Indemnity Bond and decided to tax postpone the taxability at the time of finalization of matter. While Ld. Pr. CIT is of the opinion that the 100% of the amount has been received, a substantial portion of sale consideration (23% approx.) was pending for payment. The sale deed contains the amount and cheque number but not the date of those cheques. Further, it is an undisputed fact that Rs. 1.45 crore is not received by the appellant company. Delhi High Court - Commissioner of Income Tax vs Sundeam Auto - 332 ITR 167 (2009) 5. Heard the arguments of both the parties and perused the material available on record. 6. Provisions of section 263 of....
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....ng Officer, as the case may be,] had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Principal Commissioner or Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Explanation 2.-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer 3[or the Transfer Pricing Officer, as the case may be,] shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Cour....