TaxTMI 
TaxTMI 
2024 (9) TMI 1048
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....ed the record and noted that the order passed by the Assessing Officer u/s 143(3) of the Act is prima facie erroneous and prejudicial to the interest of Revenue on account of the issues which he had reproduced at paras 3 to 6 which read as under: "03. On perusal of the assessment records it is seen the assessee had offered total sales at Rs. 4.67 crores. The assessee had also provided break up of sales of residential Units owned by the assessee forming stock in trade. The assessee had violated the provisions of section 43CA of the Act in below mentioned instances- S.No. Flat No. Name of the flat holder Sale consideration Stamp duty valuation (Rs.) Difference (Rs.) 1 A-401 Mrs Urmila Bhosale 78,60,000/- 83,18,955/- 4,58,955/- 2 B-704 Mrs Rutuja Shinde 38,50,500/- 38,50,500/- 0 3 B-1105 Namo Landmark LLP 65,72,000/- 67,25,217/- 1,53,217/- 4 B-401 Mr Ritesh Neheta 81,93,404/- 85,18,110/- 3,24,706/- 5 B-205 Mr Sameer Kotkar 60,39,200/- 78,43,443/- 18,04,243/- Total 3,25,15,104/- 3,52,56,225/- 27,41,121/- 3.1 Further, on perusal of....
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....by the employer. In this case, the assessee has made all the payments for every month deposited late which is evident from the Form 3CD. 3.3 Further, the above issue under consideration has been settled in favour of the Revenue vide decision of Hon'ble Apex Court's in the case of case of Checkmate Services (P) Ltd vs. Commissioner of Income Tax-1, 143 taxmann.com 178(2022) (SC). In the decision of Checkmate Services (P.) Ltd, the Hon'ble Apex Court decided the issue of due date of payments u/s 36(1)(va) of the Act as the due date of respective statues and not the due date of filling return of income after detailed discussion of applicability of the provisions of section 43B of the Act for the sums mentioned in the provisions of section 36(1) (va) of the Act. However, this issue was not considered during the assessment proceedings for the year under consideration. 3.4 Further on perusal of assessment records, following details of amount of loan or deposit taken or accepted and amount of repayment were found Sr. No. Name & PAN of the lender or depositor Amount of loan or deposit taken or accepted (in Rs. ) Whether the loan or deposit was take....
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....t be set aside. Rejecting the various explanations given by the assessee, the PCIT held that the Assessing Officer passed the order without making necessary examination, verification & enquiries on account of the above issues, therefore, he held the assessment order to be erroneous and prejudicial to the interest of Revenue. He accordingly, set aside the order to the file of the Assessing Officer for examining the above issues in detail and pass a fresh assessment order after giving due opportunity of being heard to the assessee. 5. Aggrieved with such order of the PCIT, the assessee is in appeal before the Tribunal by raising the following grounds of appeal: 1. Pr. Commissioner of Income Tax has erred in initiating proceedings u/s. 263 and passing the order without proper jurisdiction. Appellant prays to declare proceedings and order Bad in Law. 2. Pr. Commissioner of Income Tax has erred in passing the Order u/s. 263 without providing as to what enquiries and with whom were made before issue of notice. Appellant therefore prays to cancel the Order being violating Principles of Natural Justice. 3. Pr. Commissioner has erred in setting aside the issue ....
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.... 33,85,80,176 14 9,02,79,805 8 4,67,15,104 7. Referring to the above, he submitted that in the subsequent submissions the assessee relying on the decision of the Pune Bench of the Tribunal in the case of Rahul Construction vs. DCIT reported in 38 DTR 19 has explained to the Assessing Officer that the provisions of section 43CA of the Act are not applicable where the difference between the sale consideration and the valuation as per stamp duty valuation is less than 10%. So far as the sale of flats where the difference is more than 10% is concerned, the Ld. Counsel for the assessee referring to the notice dated 17.05.2021 of the Assessing Officer, copy of which is placed at pages 62 to 65 of the paper book, drew the attention of the Bench to question No.10 where the Assessing Officer had asked the following queries: "10. In the details of sales filed it is seen that a flat has been sold to Mr Sameer Kotkar admeasuring 1316 sq ft for a consideration of Rs. 60,39,200 when the stamp duty value is Rs. 78,43,433/- and difference is 29.88%. Kindly explain why the provisions of section 43CA of the Income Tax Act are not applicable in this case." 8. Referring to....
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....reduction is Rs. 58,84,397/- and the assessee has sold the said Flat for a consideration of Rs 60,39,200/-. Therefore Your Honour would note that the assessee has sold the said Flat for a consideration which is higher than the value for the purpose of payment of Stamp Duty. As such the provisions of Section 43CA should not apply. If Your Honour is not inclined to accept the above contention, Your Honour's attention is drawn to provision of sub section 2 of Section 43CA which reads as follows "The provisions of sub-section (2) and sub-section (3) of section 50C shall, so far as may be, apply in relation to determination of the value adopted or assessed or assessable under sub-section (1). The provisions of sub section 2 of Section 50C reads as follows "Without prejudice to the provisions of sub-section (1), where (a) The assesses claims before any Assessing Officer that the value adopted or assessed or assessable by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer, (b) the value so adopted or assessed or assessable by the stamp valuation authority under sub-se....
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....te of filing the return, then no addition is called for. He accordingly submitted that since the assessee in the instant case has admittedly deposited the employees' contribution to PF and ESI before the due date of filing the return, therefore, in view of the decision of the Hon'ble jurisdictional High Court prevailing at that time, the Assessing Officer could not have made any addition u/s 43B r.w.s. 36(1)(va) of the Act. Further, the decision of the Hon'ble Supreme Court was pronounced subsequent to the passing of the assessment order, therefore, there is no error on the order of the Assessing Officer so as to invoke the provisions of section 263 of the Act. 11. So far as the applicability of provisions of section 269SS of the Act is concerned, he submitted that the PCIT observed from the tax audit report that the assessee has accepted the loan / deposit otherwise than by an account payee cheque / bank draft from Mr Anil Kharadkar and Mr Dnyandeo Aade. He submitted that the assessee in reply to the notice u/s 263 of the Act vide letter dated 13.02.2024 filed complete details explaining the non-applicability of section 269SS of the Act. It was explained that the amount of ....
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....ted that an amount of Rs. 5 lacs which was received from Mrs. Shobha Jatte was transferred in the name of her sister's son Mr. Dnyandeo Aade which was already explained while explaining the non-applicability of provisions of section 269SS of the Act. The Ld. Counsel for the assessee accordingly submitted that when the assessee has explained the first two issues before the Assessing Officer and has proved before the PCIT that there is no violation of provisions of sections 269SS and 269T of the Act, there was no reason on part of the PCIT to invoke the provisions of section 263 of the Act. Relying on various decisions, the Ld. Counsel for the assessee submitted that for invoking the provisions of section 263 of the Act, the twin conditions viz. (i) the order is erroneous and (ii) that order is prejudicial to the interest of Revenue must be fulfilled. However, in the instant case, since the Assessing Officer has accepted the submissions made by the assessee after due application of mind on the first two issues, there is no error in the order of the Assessing Officer on this issue. 13. So far as the third and fourth issues i.e. applicability of sections 269SS and 269T are concerned, h....
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.... have also considered the various decisions cited before us. We find the Assessing Officer in the instant case passed the order u/s 143(3) of the Act on 13.08.2021 accepting the income returned by the assessee. We find the PCIT after examining the assessment record noted that the Assessing Officer has failed to make necessary examination of four issues, the details of which are already reproduced in the preceding paragraphs. It is the submission of the Ld. Counsel for the assessee that the Assessing Officer had examined the issue of applicability of provisions of section 43CA of the Act and also followed the decision of the Hon'ble jurisdictional High Court on account of late payment of employees' contribution to PF and ESI. So far as the applicability of provisions of sections 269SS and 269T of the Act are concerned, it is the submission of the Ld. Counsel for the assessee that there is absolutely no violation of the above provisions since the assessee has neither accepted nor repaid any loan in cash and the acceptance or repayment of loan are through journal entries or through RTGS / banking channels. 16. Thus, it is his submission that the order passed by the Assessing Office....
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....IT vs. Ghatge Patil Transports Ltd. (supra) and various other Hon'ble High Courts have decided this issue in favour of the assessee, according to which no addition can be made on account of late payment of employees' contribution to PF and ESI if the said sum is deposited to the credit of the central government before the due date of filing the return. The law was finally settled by the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs. CIT (supra) which was pronounced on 12.10.2022 whereas the Assessing Officer has passed the order on 13.08.2021. Therefore, we are of the considered opinion that since the assessee has admittedly deposited the employees' contribution to PF and ESI before the due date of filing of return, therefore, the PCIT was not justified in invoking the provisions of section 263 of the Act by relying on the decision of the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs. CIT (supra), which came subsequent to the order passed by the Assessing Officer. We, therefore, are of the considered opinion that the PCIT is not justified in invoking the provisions of section 263 of the Act on the issue of late payment of employ....