2006 (2) TMI 62 - HC - Income Tax

Revision - Commissioner contended that sale of plot did not amount to sale so as to attract the liability to pay capital gains tax but it was in the nature of adventure in trade and entire sale transaction amounted to business profit - Held that commissioner order not sustained and set aside

Summary

Issues:
Appeal under section 260A of the Income-tax Act, 1961 against an order passed by the Income-tax Appellate Tribunal regarding the transaction of purchase and sale of plots by the assessee, invoking revisionary powers under section 263 of the Act, assessment of capital gains tax, and the validity of the Commissioner's order.

Analysis:
The appeal was filed by the Revenue challenging the order of the Income-tax Appellate Tribunal regarding the transaction of purchase and sale of plots by the assessee. The Commissioner invoked revisionary powers under section 263 of the Act, considering the sale of a plot as an "adventure in trade" instead of attracting capital gains tax. The Tribunal set aside the Commissioner's order, stating that the Assessing Officer's decision was not erroneous or prejudicial to the Revenue's interests. The Tribunal also noted that a mere change of opinion on the same facts does not justify invoking section 263. The Revenue appealed this decision, focusing on the substantial question of law related to the Tribunal's judgment.

The assessee argued that the basis for invoking section 263 against them had disappeared during the appeal. This was because the co-owner's case, which formed the basis for the Commissioner's decision, had been set aside by the Tribunal. The assessee contended that if the co-owner's case was no longer valid, there was no reason to pursue the appeal against them. The Revenue did not dispute this fact, acknowledging the impact of the co-owner's case on the current appeal.

The High Court observed that the Commissioner's order, based on the co-owner's case, could not be sustained once the co-owner's case had been set aside. It emphasized that inconsistent orders on the same sale by co-owners were not acceptable. Additionally, since the Assessing Officer had already considered all facts and concluded that it was a case of sale attracting capital gains, the Commissioner could not override this decision based on the same facts. Consequently, the High Court found no merit in the Revenue's appeal and dismissed it, with no costs imposed.