2014 (12) TMI 296 - AT - Income Tax

Validity of order of CIT for invoking section 263 Assessment order in respect of assessment of income on sale of property as business income instead on capital gain declared by the assessee set aside by CIT - Held that - In M/s Khatiza S. Oomerbhoy Vs. ITO,Mumbai 2006 (2) TMI 201 - ITAT BOMBAY-H - the fundamental principles for judging the action of the CIT taken u/s 263 were mentioned - CIT has propounded that assessee has already been offering income from profession and business in his two proprietorship concerns, he has the basic idea to classify his income - He has classified purchase of plots under the head Investment and offers the income under the head Capital Gain - assessee had never depicted these assets as a stock in trade in the financial statements - the contention of the assessee before the CIT was that the AO has issued questionnaires and made oral discussion, but the assessee during the course of hearing failed to point out any circumstances which has been discussed by the AO to indicate that the income from sale of property is to be assessed as business income - in the past also, the assessee was offering income on purchase and sale of the property under the head investment . Accounting entries maintained by the assessee cannot be a guiding factor for determining the true income, but there should be strong reasons to dispel the stand of the assessee - the AO was not having any such strong reason - He, on a wrong assumption of law changed the head of income there are certain broader tests required to be applied on any transactions for finding out, whether such transactions was a business transaction or it was a simplicitor investment - Though the tests were applied on investment in the shares, but some of the decisions can equally be applied on any other transactions - assessee in his accounts not showing the land purchased by him as stock in trade - Nowhere, from the circumstantial evidence it can be inferred that the assessee was in the business of sale and purchase of the property - therefore, there was no error in the order of the CIT - As regards the application of section 50C for computing capital gain, permission to capitalize the interest income, CIT has set aside these issues for the Assessing Officer to be looked into while determining the capital gain arisen to the assessee on sale of property thus, the order of the CIT is upheld Decided against assessee.

Issues Involved:
1. Legality of the CIT's invocation of Section 263 of the Income Tax Act.
2. Classification of income from the sale of property as business income versus capital gains.
3. Adequacy of the Assessing Officer's (AO) inquiry and application of mind.
4. Application of Section 50C for computing capital gains.
5. Permission to capitalize interest income.

Issue-wise Detailed Analysis:

1. Legality of the CIT's Invocation of Section 263:
The CIT invoked Section 263, arguing that the AO failed to conduct a proper inquiry while changing the heads of income from capital gains to business income. The CIT noted that the AO did not bring any material on record to show that the investment in the property was for trading purposes. The Tribunal upheld the CIT's action, emphasizing that an order can be revised under Section 263 if it is erroneous and prejudicial to the interest of the Revenue. The Tribunal cited various judicial precedents, including the Supreme Court's decision in Malabar Industrial Co. Ltd vs. CIT, to support this view.

2. Classification of Income from Sale of Property:
The CIT argued that the properties sold by the assessee were not held as stock in trade but as capital assets. The AO's conclusion that the properties were held for business purposes was deemed incorrect. The Tribunal agreed, noting that the assessee had consistently declared income from the sale of properties under the head "Capital Gains" in previous years, which had been accepted by the Department. The Tribunal emphasized that the AO's classification of income must be based on a correct assumption of facts and proper application of law.

3. Adequacy of the AO's Inquiry and Application of Mind:
The Tribunal noted that the AO's assessment order was brief and lacked detailed reasoning for changing the heads of income. The CIT found that the AO did not properly verify the facts or previous assessment records. The Tribunal agreed, citing the Delhi High Court's decision in Gee Vee Enterprises Vs. Addl. CIT, which emphasized the AO's duty to investigate the facts stated in the return. The Tribunal concluded that the AO's failure to make a proper inquiry rendered the assessment order erroneous.

4. Application of Section 50C for Computing Capital Gains:
The CIT set aside the issue of applying Section 50C for computing capital gains for the AO to re-examine. The Tribunal noted that any direction on this issue would be premature, as it was to be looked into while determining the capital gains arising from the sale of property.

5. Permission to Capitalize Interest Income:
The CIT also set aside the issue of capitalizing interest income for the AO to review. The Tribunal did not provide a detailed analysis of this issue, as it was to be addressed by the AO during the reassessment process.

Conclusion:
The Tribunal upheld the CIT's invocation of Section 263, agreeing that the AO's assessment order was erroneous and prejudicial to the Revenue's interest due to inadequate inquiry and incorrect classification of income. The appeal of the assessee was dismissed, and the issues of applying Section 50C and capitalizing interest income were set aside for the AO to re-examine.

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