2017 (8) TMI 952 - AT - Income Tax

Revision u/s 263 - proof of order passed u/s 143(3) as erroneous and prejudicial to the interest of the revenue - Held that - We find that in this case the assessee has been receiving rental income from the six properties which are being shown under the head income from house property and has been accepted by the department in the earlier years. In some cases, the agreements were executed in the earlier years. We further find that the ld. CIT assumed the jurisdiction u/s 263 of the Act without pointing out as to how the conditions precedents to invoking the revisionary power have been satisfied. How the order of AO is erroneous and prejudicial to the interest of revenue. The ld. CIT has simply stated that the AO should have examined the issue whether the income from property was assessable under the head income from house property or business income. The CIT was also completely failed to point out as to how the assessment u/s 143(3) of the Act was erroneous so as to be prejudicial to the interest of the revenue and therefore the power exercised by the Commissioner u/s 263 of the Act was without any valid reason or justification. Moreover, the details of the rents along with the agreements with the tenants were called for by the AO during the course of assessment proceedings and only after examining the same the assessment order u/s 143(3) was framed. - Decided in favour of assessee.

Summary

Issues:
Challenge to order u/s 263 by assessee regarding assessment year 2011-12.

Analysis:

Issue 1: Jurisdiction under Section 263
The sole issue raised in the appeal pertains to the jurisdiction exercised by the Commissioner of Income Tax (CIT) under section 263 of the Income Tax Act. The CIT set aside the assessment order passed under section 143(3) by the Assessing Officer (AO) on the grounds of being erroneous and prejudicial to the revenue's interest.

Issue 2: Assessment and Revisionary Jurisdiction
The assessment was completed under section 143(3) of the Act, accepting the returned income. Subsequently, the CIT issued a notice under section 263, questioning the treatment of rental income from commercial properties as income from house property rather than business income. The CIT highlighted discrepancies in the treatment of rental income and the lack of inquiry by the AO on this matter.

Issue 3: Assessee's Response and CIT's Decision
The assessee responded to the notice by justifying the treatment of rental income as income from house property based on fulfilling the conditions under section 22. The CIT, however, set aside the assessment, emphasizing the commercial nature of the properties leased out and the absence of detailed inquiry by the AO. The CIT directed a reevaluation to determine if the profit should be assessed as business income or income from other sources.

Issue 4: Arguments and Precedents
The assessee's counsel argued that the CIT lacked valid authority under law to invoke section 263, as the necessary conditions were not met. The counsel cited past acceptance of rental income treatment and lack of new material to warrant a different view. Precedents were presented to support the argument that if the AO called for and considered relevant details during assessment, the order cannot be deemed erroneous.

Issue 5: Tribunal's Decision
After considering both parties' submissions and relevant case law, the Tribunal found that the CIT had not demonstrated how the AO's order was erroneous or prejudicial to revenue. The Tribunal noted that the AO had examined the rental income details and agreements with tenants before passing the assessment order. Relying on precedents, the Tribunal concluded that the CIT's exercise of revisionary power lacked valid jurisdiction. Consequently, the proceedings under section 263 were quashed, and the appeal of the assessee was allowed.

In conclusion, the Tribunal's decision favored the assessee, emphasizing the importance of demonstrating valid jurisdiction and pointing out specific errors in the AO's assessment order to invoke revisionary powers under section 263 effectively.