2014 (1) TMI 1077 - AT - Income Tax

Validity of order u/s 263 - Held that - The Assessing Officer made elaborate inquiry into the matter - The AO has raised many questions vide questionnaire dated 17.03.2009, u/s 142 (1) of the Act - The assessee, vide letter dated 27.10.2009, submitted the details of capital gain earned during the year - On being duly satisfied with the aforesaid details called for from and duly furnished by the assessee, that the Assessing Officer accepted the amount declared under the head of capital gains - This amount was set off against the brought forward capital loss of earlier years - The observations made by the CIT that the assessee showed abnormally high expenditure, that probably the assessee should have declared before trading results, and that the income from sale/purchase of investments should have been declared as business income, are uncalled for - These observations of the ld. CIT are not based on any material and fall in the realm of conjectures and surmise, and do not entitle the provisions of Section 263 of the Act to be invoked so as to revise the assessment order - Decided in favour of assessee.

Summary

Issues Involved:
1. Legality of the CIT's order under Section 263 of the Income Tax Act.
2. Classification of gains from the sale of shares as long-term capital gains or business income.
3. Jurisdiction of the CIT to set aside the Assessing Officer's order.

Issue-wise Detailed Analysis:

1. Legality of the CIT's Order under Section 263:
The primary issue in the appeal was whether the order passed by the CIT under Section 263 of the Income Tax Act was valid. The CIT had observed that the assessee's activities involved transactions related to shares, which he believed constituted stock-in-trade rather than capital investment. Consequently, the CIT considered the profits from the sale of shares as business income rather than long-term capital gains, leading to an under-assessment of income. The CIT directed the Assessing Officer to conduct further inquiries and reframe the assessment order.

The assessee contended that the order of the CIT was erroneous and that the Assessing Officer had correctly treated the gains from the sale of shares as long-term capital gains. The assessee argued that its principal business was to enter into joint ventures and promote other companies, and the gains from investments had always been treated as capital gains, which had been accepted in previous scrutiny assessments. The Tribunal found that the Assessing Officer had conducted a detailed inquiry, and the CIT's action amounted to a review of the assessment order, which is not permissible under Section 263.

2. Classification of Gains from Sale of Shares:
The CIT's order challenged the classification of gains from the sale of shares of Gillette Bangladesh and Gillette Sri Lanka as long-term capital gains. The CIT believed these should be treated as business income. The assessee argued that its business was not trading in shares but investing in joint ventures and promoting companies, and the gains from such investments had always been treated as capital gains.

The Tribunal noted that the assessee's business activities had remained consistent since its inception, and the gains from investments had been regularly accepted as capital gains in previous years. The Tribunal observed that the disinvestment shown by the assessee as capital gains had been accepted by the department in scrutiny assessments, and there was no basis for the CIT to treat the gains as business income.

3. Jurisdiction of the CIT to Set Aside the Assessing Officer's Order:
The CIT invoked Section 263, arguing that the Assessing Officer had not conducted sufficient inquiries to determine whether the transactions were in the nature of trading in shares or holding them as investments. The assessee contended that the Assessing Officer had conducted a detailed inquiry, including specific questions about the nature of the income from the sale of shares.

The Tribunal found that the Assessing Officer had indeed conducted a detailed inquiry, and the CIT's action was not justified. The Tribunal cited several case laws, including 'Malabar Industries Co. Ltd.', 'CIT vs. Greenworld Corpn.', and 'CIT vs. Max India Ltd.', which held that Section 263 can only be invoked in cases of no inquiry by the Assessing Officer. Since the Assessing Officer had conducted a specific and detailed inquiry, the Tribunal concluded that the CIT's order was not warranted.

Conclusion:
The Tribunal allowed the assessee's appeal, canceling the CIT's order and reviving the order passed by the Assessing Officer. The Tribunal found that the CIT's order was based on conjectures and surmises, and there was no material to support the CIT's observations. The Tribunal emphasized that the Assessing Officer had conducted a detailed inquiry, and the CIT's action amounted to an impermissible review of the assessment order.