2018 (2) TMI 1150 - AT - Income Tax

Revision u/s 263 - capital gain on sale of agricultural land - Held that - It is evident that during the course of assessment proceedings issue about the taxability of capital gain was considered in assessment and a view was taken by the Assessing Officer as to the non taxability of such gain. Therefore, when the claim of the assessee was accepted in assessment order after due consideration of the facts, it cannot be said that the assessment order was erroneous as assessment was passed after application of mind The process of enquiry would be unending and no assessment order can be said to be final as all the assessment order can be found fault on the ground that enquiries should have been made more elaborate. Certificate issued by Tehsildar in the instant could not be disbelieved by the Assessing Officer inter alia for the reason that the Tehsildar is also a public officer. Certificates issued by the public officers are generally believed by the other officers as public duty unless there is some material, which suggest that such certificate has been obtained under fraud etc. Therefore, we do not agree with the contention of the ld. CIT in the order u/s 263 of the Act that Tehsildar s certificate should have been corroborated with other evidence. Accordingly, the order passed by the ld. CIT u/s 263 of the Act for the above stated reasons is hereby set aside and quashed. Since we have quashed the order u/s 263 of the Act, we do not deal with the merit of the claim of the assessee. - Decided in favour of assessee

Summary

Issues:
1. Jurisdiction under section 263 of the Income Tax Act.
2. Taxability of capital gain on the transfer of agricultural land.

Issue 1: Jurisdiction under section 263 of the Income Tax Act:
The appeal challenged the order of the Principal Commissioner of Income Tax, which assumed jurisdiction under section 263 of the Income Tax Act. The appellant argued that the jurisdiction assumed was erroneous as the assessment order was not prejudicial to the revenue. The appellant contended that the assessment order considered the issue of exemption from capital gain, and the Assessing Officer had accepted the claim after due consideration. The appellant emphasized that the assessment order was passed after providing ample opportunities and considering all relevant details. The appellant cited various legal precedents to support the argument that the Assessing Officer's decision, based on the facts presented, should not be deemed erroneous. The Tribunal noted that the Assessing Officer had raised queries, perused evidence, and reached a conclusion on the non-taxability of the capital gain. The Tribunal, relying on legal decisions, including the Supreme Court's ruling in Malabar Industrial Co. Ltd vs CIT, held that the order passed under section 263 was not in accordance with the law. The Tribunal found that the absence of a finding by the Principal Commissioner after receiving replies from the assessee rendered the order unsustainable, leading to its quashing.

Issue 2: Taxability of capital gain on the transfer of agricultural land:
The appellant had earned capital gain on the sale of agricultural land beyond the prescribed limits of Sohna, which was claimed to be exempt. The Assessing Officer had accepted this claim after considering the evidence provided by the appellant. However, the Principal Commissioner, in the impugned order under section 263, held that the capital gain was taxable. The Tribunal observed that the appellant had submitted various documents during the assessment proceedings to support the claim of exemption, including the purchase deed, sale deed, and certificates from the Tehsildar. These documents indicated that the land was agricultural and situated beyond the municipal limits, justifying the claim for exemption. The Tribunal disagreed with the Principal Commissioner's assertion that the Tehsildar's certificate needed further corroboration, emphasizing that certificates issued by public officers are generally accepted as genuine. The Tribunal set aside and quashed the order under section 263, concluding that the certificate issued by the Tehsildar was sufficient evidence to support the appellant's claim for exemption from capital gain tax.

In conclusion, the Tribunal allowed the appeal of the assessee, emphasizing that the order passed under section 263 was not sustainable due to the lack of findings by the Principal Commissioner and the adequacy of the evidence provided by the appellant to support the claim of exemption from capital gain tax on the transfer of agricultural land.