2013 (10) TMI 227 - HC - Income Tax

Revision u/s 263 - an order erroneous and prejudicial to the interest of the Revenue power of CIT to revise - The order under Section 263 in the first paragraph refers to profit on sale of shares, which was treated as short-term capital gain or long- term capital gain. Notice was issued why profit from sales of shares should not be treated as business profit. - Held that - The Commissioner has accepted that this is not a case of no inquiry or investigation but it could be a case of an erroneous decision. - In Malabar Industrial Co. Ltd. Vs. CIT, 2000 (2) TMI 10 - SUPREME Court , it has been observed that where two views are possible and the Assessing Officer takes one view or accepts the assessee s stand, the order is not erroneous, unless the order is not sustainable in law. Thus in such cases, Commissioner is not powerless. After hearing the assessee, he can hold that the finding of the Assessing Officer is erroneous. In rare cases the inadequate inquiry per se can be treated as erroneous, but this must be indicated and stated by the Commissioner in clear and lucid term by pointing out the relevant facts In the present case, statutory requirement is not met Decided against the Revenue.

Summary

Issues:
- Challenge under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal dated 29th February, 2012.
- Validity of the order under Section 263 of the Commissioner of Income Tax dated 5th March, 2010.

Analysis:
1. The High Court heard the appeal challenging the order passed by the Income Tax Appellate Tribunal under Section 260A of the Income Tax Act, 1961. The order under Section 263 of the Commissioner of Income Tax dated 5th March, 2010 was the subject of contention. The Court upheld the Tribunal's order due to the cryptic and self-contradictory nature of the Commissioner's order under Section 263, which supported the respondent's case that the power under Section 263 was wrongly invoked.

2. The respondent-assessee had filed a return for the assessment year 2006-07, declaring income from various sources. The Assessing Officer made an addition under Section 14A of the Act by disallowing expenditure but did not make any other additions. The Commissioner's order under Section 263 raised concerns regarding the treatment of profit from the sale of shares as business income, which the respondent argued was rightly shown as capital gains. The Commissioner noted a lack of inquiry by the Assessing Officer and invoked Section 263 to set aside the original assessment order for fresh consideration.

3. The High Court observed that the Commissioner's order lacked statutory requirements and failed to meet the necessary conditions for invoking Section 263. The Court emphasized that the Commissioner must clearly establish that the order passed by the Assessing Officer was both erroneous and prejudicial to the interest of the Revenue to sustain an order under Section 263. The Court referred to the Supreme Court's decision in Malabar Industrial Co. Ltd. Vs. CIT, highlighting the distinction between inadequate inquiry and no inquiry by the Assessing Officer in determining the correctness of the original assessment.

4. Ultimately, the High Court dismissed the appeal, citing the Commissioner's failure to meet the statutory requirements for invoking Section 263. The Court concluded that the observations made by the Commissioner did not fulfill the jurisdictional conditions necessary to sustain an order under Section 263. Therefore, the appeal was dismissed in light of the statutory provisions, and the Tribunal's order was upheld.