2018 (2) TMI 1790 - AT - Income Tax

Revision u/s 263 - non consideration of provisions of section 50C applicability to the cold storage building so to substitute actual sale consideration by deemed sale consideration - Held that - The assessment was framed after due enquiry/investigation by the AO. Section 50C speaks about transfer of land or building or both and the adoption of deemed valuation being valuation of stamp purposes as the full value of consideration. It does not speak of plant and this contention was put on record vide reply of the assessee whereby it has been put on record that it was a depreciable business assets duly disclosed in the return of income. The cold storage was sold as a whole and constituted plant under section 43(3) of the Act. The term plant has been interpreted as including cold storage building also and this line of reasoning is established by the Hon ble jurisdictional High Court in the case of CIT vs. Kanodia Cold Storage 1974 (5) TMI 18 - ALLAHABAD HIGH COURT . Thus provisions of section 50C of the Act is not applicable to the cold storage building so to substitute actual sale consideration by deemed sale consideration and the order of the Assessing Officer passed under section 147/143(3) of the Act cannot be a subject matter of section 263 - Decided in favour of assessee.

Summary

Issues:
Challenge to jurisdiction under section 263 of the Act.

Analysis:
The appeal was filed against an order passed under section 263 of the Act by the Principal Commissioner of Income-tax-1, Kanpur. The Principal Commissioner observed that the assessee had sold assets worth a specific amount, which was not reflected in the income tax return. The Assessing Officer accepted the claim made by the assessee regarding the treatment of surplus from the sale of assets as business profit. However, the Principal Commissioner found that the income not credited by the assessee had escaped taxation, leading to the issuance of a notice under section 263. The main contention was the non-application of section 50C of the Act in the case. The Principal Commissioner set aside the Assessing Officer's order, leading to the appeal by the assessee.

The assessee argued that the assessment order was passed after conducting relevant inquiries, as evidenced by the notice issued under section 142(1) of the Act. The assessee contended that there was no error in the order passed by the Assessing Officer and that section 50C did not apply in this case. Referring to a judgment of the jurisdictional High Court, the assessee sought to set aside the Principal Commissioner's order under section 263. The Department, however, supported the Principal Commissioner's order.

Upon analysis, the Tribunal found that for section 263 to apply, the order must be both erroneous and prejudicial to the Revenue's interest. The Tribunal noted that the applicability of section 50C to depreciable assets was a debatable issue, citing various judicial pronouncements. It was observed that the necessary inquiry was conducted by the Assessing Officer before passing the assessment order. The Tribunal also found that section 50C did not apply to the depreciable business assets in question, as they were disclosed in the return of income. Referring to the interpretation of the term "plant" to include the cold storage building, the Tribunal concluded that section 50C was not applicable, and the order under section 147/143(3) could not be subject to section 263. Consequently, the Tribunal allowed the appeal of the assessee and set aside the Principal Commissioner's order under section 263.

In conclusion, the Tribunal's detailed analysis focused on the applicability of section 50C to the assets in question, the conduct of the Assessing Officer's inquiry, and the interpretation of relevant legal provisions and judicial precedents to determine the correctness of the Principal Commissioner's decision under section 263.