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2017 (11) TMI 1061 - AT - Income TaxInvocation of jurisdiction under section 263 - Reopening of assessment already initiated - addition u/s 40A(3) - Held that - We are of the considered opinion the Ld. Pr. CIT could not have sought to revise an order passed under section 147 read with 143 (3) of the Act on an issue which was not a subject matter of the reassessment proceedings under section 147 in the first place and the of assumption of jurisdiction under section 263 of the Act loses its validity on this count itself. Further, the fact of the matter remains that the assessee had not claimed any expenditure towards purchase of land during the year under consideration and, therefore, the provisions of section 40A (3) of the Act could not have been legally invoked as they come into play only when an amount, which has been claimed as an expenditure, has been paid in cash. It is our considered opinion that the Ld. Pr. Commissioner of Income Tax was also not justified in setting aside the re-assessment order and directing the framing of an assessment by applying provisions of section 40A (3) of the Act in a situation when the provision could not be invoked and the same would be contrary to the provisions of law, if so invoked. It is our considered opinion that the Ld. Pr. CIT does not have the power to direct the AO to do something which the Act itself does not permit. The invocation of jurisdiction under section 263 of the Act loses its validity on this count also. Accordingly, we hold that the Commissioner of Income Tax had no jurisdiction or power to invoke provisions of section 263 of the Act on the facts and circumstances of the case and we deem it fit to quash the order passed under section 263 of the Act. Appeal of the assessee is allowed.
Issues Involved:
1. Legality of the initiation of proceedings under section 263 of the Income Tax Act. 2. Whether the reassessment order could be considered erroneous and prejudicial to the interests of the revenue. 3. Adequacy of the opportunity provided to the appellant before making the order under section 263. 4. Reconsideration of matters already scrutinized in the reassessment order. 5. Applicability of section 40A(3) of the Income Tax Act to the purchase of land. Detailed Analysis: 1. Legality of the initiation of proceedings under section 263 of the Income Tax Act: The appellant contended that the initiation of proceedings under section 263 dated 01.03.2016 was illegal, bad in law, void ab initio, and violated the principles of natural justice. The Tribunal noted that the Principal Commissioner of Income Tax (Pr. CIT) issued a show-cause notice under section 263 on the grounds that the Assessing Officer (AO) did not make any disallowance under section 40A(3) despite the assessee admitting to huge cash withdrawals for land purchases. The Tribunal found that the Pr. CIT's assumption of jurisdiction under section 263 was invalid because the issue of section 40A(3) was not part of the reassessment proceedings initiated under section 147. 2. Whether the reassessment order could be considered erroneous and prejudicial to the interests of the revenue: The Pr. CIT considered the reassessment order erroneous and prejudicial to the interests of the revenue because the AO did not apply section 40A(3) to the cash payments for land purchases. However, the Tribunal highlighted that the assessee did not claim any expenditure for the land purchase during the year under consideration. The Tribunal cited several judgments, including those from the Hon'ble Delhi High Court and Bombay High Court, to assert that if no addition was made on the issue for which the assessment was reopened, other issues could not be examined. Thus, the reassessment order could not be deemed erroneous or prejudicial to the interests of the revenue. 3. Adequacy of the opportunity provided to the appellant before making the order under section 263: The appellant argued that a valid and proper opportunity was not provided before the order under section 263 was made, rendering the opportunity illusory and invalid. The Tribunal did not specifically address the adequacy of the opportunity provided but focused on the broader issue of the Pr. CIT's jurisdiction to invoke section 263. 4. Reconsideration of matters already scrutinized in the reassessment order: The appellant contended that the Pr. CIT reconsidered matters already scrutinized by the AO in the reassessment proceedings. The Tribunal agreed, stating that the Pr. CIT could not revise an order on an issue that was not part of the reassessment proceedings under section 147. The Tribunal emphasized that the AO had verified the facts during the reassessment, and the Pr. CIT's direction to reconsider these facts was unjustified. 5. Applicability of section 40A(3) of the Income Tax Act to the purchase of land: The Tribunal examined whether section 40A(3), which disallows cash payments exceeding ?20,000, applied to the purchase of land. The Tribunal concluded that section 40A(3) could only be invoked if the expenditure was claimed as a deduction, which was not the case here. The Tribunal found that the Pr. CIT's direction to apply section 40A(3) was contrary to law, as the assessee had not claimed any expenditure for the land purchase during the year. Conclusion: The Tribunal quashed the order passed under section 263 of the Income Tax Act, holding that the Pr. CIT had no jurisdiction or power to invoke section 263 on the facts and circumstances of the case. The appeal of the assessee was allowed, and the order pronounced in the Open Court on 1.11.2017.
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