2017 (4) TMI 1604 - AT - Income Tax

Revision u/s 263 by CIT - income in question is assessable under the head Business income or under the head capital gains - HELD THAT - No enquiry was made by the AO on this aspect that whether the income in question is assessable under the head Business income or under the head capital gains and therefore, in our considered opinion, this judgment of the Hon ble Apex Court is squarely applicable and by respectfully following this judgment of the Hon ble Apex Court in the case of Malabar Industrial Co. Ltd 2000 (2) TMI 10 - SUPREME COURT we hold that there is no infirmity in the order passed by the CIT u/s 263 of the IT Act, 1961. Appeal of the assessee in the proceedings u/s 263 of the IT Act is dismissed.

Summary

Issues:
1. Appeal against order u/s 263 of the IT Act, 1961.
2. Appeal against order u/s 143(3) r.w.s.263 of the IT Act, 1961.

Issue 1: Appeal against order u/s 263 of the IT Act, 1961:
The appellant contested the CIT's decision to set aside the assessment, arguing that the property transactions should be treated as capital gains, not business income. The appellant claimed that the AO had already assessed it as capital gains, and therefore, the CIT's intervention was unwarranted. The appellant relied on judicial pronouncements to support their position. However, the CIT contended that the property was previously treated as stock in trade, making it ineligible for capital gains treatment. The CIT highlighted discrepancies in the assessment order regarding expenses related to the property transactions. The tribunal found that the property was consistently treated as stock in trade, and no evidence supported a conversion to a capital asset. The tribunal cited the Malabar Industrial Co. Ltd. case, emphasizing the AO's failure to inquire about the nature of the income, leading to an erroneous assessment. Consequently, the tribunal upheld the CIT's decision under section 263 of the IT Act, 1961.

Issue 2: Appeal against order u/s 143(3) r.w.s.263 of the IT Act, 1961:
The appellant challenged the CIT(A)'s decision based on the CIT's order under section 263. The appellant argued that the CIT(A) did not address the taxability of the income under the head "income from business and profession." The CIT(A) had remanded the assessment back to the AO without deciding on the merits. The tribunal analyzed a judgment cited by the CIT(A) from the Madras High Court, which involved specific directions to the AO for reassessment. In contrast, the CIT's directions in the present case were general, lacking specificity. The tribunal concluded that the CIT(A) should have decided on the merit of the issue rather than remanding it back to the AO. Consequently, the tribunal dismissed the appeal under section 263 but allowed the second appeal for statistical purposes.

This detailed analysis of the legal judgment from the Appellate Tribunal ITAT Bangalore involved two main issues: appeals against orders under sections 263 and 143(3) r.w.s.263 of the IT Act, 1961. The tribunal's decisions were based on the interpretation of the nature of property transactions and the adequacy of directions provided in the orders. The judgment provides a comprehensive overview of the arguments presented by the parties, the application of relevant judicial pronouncements, and the reasoning behind the tribunal's conclusions.