2017 (9) TMI 1411 - HC - Income Tax

Revision u/s 263 - order erroneous or prejudicial to the interest of the Revenue - assessee made a wrong computation of capital gains by claiming deductions actually not allowable by law and the Assessing Officer passed the order by mechanically accepting the computation of the assessee - reversed CIT-A s revision order - Tribunal Held that - Tribunal found that the Commissioner has perused the documents but failed to note that as far as the first issue is concerned, the depreciation was not claimed on the entire building. It has been claimed only on 1/6th portion of the building and the income from remaining 5/6th portion was offered to tax under the head income from house property . That has been thoroughly examined by the Assessing Officer during the course of assessment proceedings and that is evident from the fact that he has made an addition of ₹ 4,31,298/under this head income from house property . The claim for deduction of ₹ 31.05 crores was the second aspect which was examined by the Commissioner. Insofar as that is concerned, the Tribunal found that the claim was of deduction as there was an end to the litigation. It is only when the litigation ended that the building could be sold. The payment has been made as per the direction of the Company Law Board, as also as per the interim arbitration award. The Tribunal therefore found that once the Assessing Officer had before it such matters, the first objection that the assessee had sold a property, and in the opinion of the Commissioner, special provision of Section 50A shall apply, but the Assessing Officer found from the scrutiny of the records that it is only the 1/6th portion which was used by it as an office and remaining 5/6th portion of the building was leased. It is the 5/6th portion on which the lease rental income was derived. This was taken to be the income from house property . Insofar as the 1/6th portion is concerned, that was used as an office and eventually disposed of. Insofar as that disposal is concerned as well, the Tribunal noted that the Assessing Officer s order was not erroneous insofar as prejudicial to the interest of the Revenue. The Assessing Officer adopted one of the courses permissible in law. Once the view taken by the Assessing Officer is a possible view of the matter and the Tribunal has given cogent and satisfactory reasons for interfering with the order of the Commissioner, then we do not think that any substantial question of law arises from this exercise. The Tribunal found that the observation of the Commissioner that the expenditure incurred for payment to shareholders is not deductible in any other manner is also incorrect because of the order passed by the Tribunal s Mumbai Bench. In such circumstances, this is not a case where, on a working of the capital gain by the Assessing Officer, he has committed any error. In the circumstances, the Tribunal was justified in setting aside the order of the Commissioner. - Decided against revenue

Issues:
1. Challenge to the order of the Income Tax Appellate Tribunal dated 21st May, 2014.
2. Invocation of Section 263 of the Income Tax Act, 1961 by the Commissioner.
3. Allegation of lack of application of mind by the Assessing Officer in passing the assessment order.
4. Examination of the working of capital gains and encumbrance on the property.
5. Claim for deduction and computation of capital gains under special provisions of Section 15A of the IT Act.
6. Dispute regarding the deduction claimed and the Assessing Officer's decision.
7. Interpretation of encumbrance on the property and settlement of disputes.
8. Judicial review of the Commissioner's order and Tribunal's decision.

Analysis:
1. The Revenue challenged the Tribunal's order allowing the Income Tax Appeal No. 16/Mum./2012 for the assessment year 2007-2008. The Commissioner invoked Section 263 of the IT Act, deeming the Assessing Officer's order as prejudicial to Revenue's interest due to lack of application of mind. The Tribunal found the Commissioner's satisfaction to be valid, but the Revenue disagreed, arguing that the Assessing Officer erred in assessing capital gains without thorough examination.

2. The Commissioner concluded that the Assessing Officer failed to apply his mind, leading to erroneous assessment. The Tribunal, however, found the Commissioner's order detailed and reasoned, emphasizing the need for precise satisfaction under Section 263. The Tribunal observed discrepancies in the assessment related to lease rent receivable and interest-free deposit, indicating incomplete examination by the Assessing Officer.

3. Regarding the encumbrance on the property, the Tribunal noted the Assessing Officer's premise as erroneous, leading to a dispute on the property's sale. The Commissioner examined the deduction claimed by the assessee and found errors in the computation of capital gains, leading to the order's prejudicial nature. The Tribunal analyzed the depreciation claimed and the written down value of the asset sold, highlighting discrepancies in the assessment.

4. The Tribunal scrutinized the claim for deduction and the settlement of disputes, noting the Assessing Officer's permissible view in assessing the capital gains. The Commissioner's interpretation of encumbrance on the property was deemed unsupportable, leading to a misunderstanding of the settlement terms. The Tribunal upheld the Assessing Officer's decision as reasonable and not erroneous, dismissing the Revenue's appeal.

5. The High Court affirmed the Tribunal's decision, emphasizing that no substantial question of law arose from the case. The Court rejected the Revenue's submissions, concluding that the Tribunal's analysis of the issues was satisfactory and did not warrant further appeal. The appeal was dismissed, and no costs were awarded.

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