2018 (11) TMI 381 - AT - Income Tax

Revision u/s 263 - AO had ignored that out of the three items i.e. land, building and plant and machinery, capital gain on land could either be short term or long term, depending on the period of holding, as it was not a depreciable asset, whereas building and plant and machinery being depreciable items had to be taxed under short term capital gains - C.I.T. was also of the view that the stamp duty value of the property was to be deemed as full value of the consideration for the purpose of section 48 r/w section 50C of the Act - lack of inquiry OR inadequate inquiry Held that - A perusal of the original assessment order shows that the issue of capital gains was duly considered by the Assessing Officer and he proceeded to compute the short term capital gain at ₹ 22,86,227/- whereas it was the assessee s claim during the course of assessment proceedings that no capital gains had been earned. Thus, it is not the case of the department that no information regarding the impugned transaction was called for by the Assessing Officer or that the transaction was not enquired into by the Assessing Officer. It is very much evident that relevant details in this regard were submitted by the assessee during the course of assessment proceedings and the same form part of the record. Therefore, no inference can be drawn that the Assessing Officer has not examined the issue although he may not have expressed it in as many terms as may be considered appropriate by his superior authority and even if the inquiry was inadequate, the same cannot be a ground for revision. It is settled law that an order cannot be termed as erroneous unless it is not in accordance with law. Section 263 does not visualise the substitution of judgment of the Ld. C.I.T. for that of the Assessing Officer. Assessing Officer s order cannot be held to be erroneous and prejudicial to the interest of the revenue within the meaning of section 263 - Decided in favour of assessee

Summary

Issues Involved:
1. Jurisdiction of the Principal Commissioner of Income Tax (Pr. CIT) under Section 263 of the Income Tax Act.
2. Applicability of Section 50B (Slump Sale) versus Section 50C (Stamp Duty Value) of the Income Tax Act.
3. Examination and inquiry by the Assessing Officer (AO) during the original assessment.
4. Adequacy of the inquiry conducted by the AO.
5. Whether the transaction was a slump sale or not.
6. Procedural errors and lack of opportunity for the assessee to present their case.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Principal Commissioner of Income Tax (Pr. CIT) under Section 263 of the Income Tax Act:
The assessee challenged the jurisdiction of the Pr. CIT under Section 263, arguing that the order did not demonstrate how the assessment was erroneous and prejudicial to the Revenue. The Tribunal noted that for Section 263 to be invoked, both conditions (erroneous and prejudicial to the Revenue) must be satisfied. The Tribunal found that the AO had duly considered the issue of capital gains during the original assessment, and therefore, the Pr. CIT's jurisdiction under Section 263 was not justified.

2. Applicability of Section 50B (Slump Sale) versus Section 50C (Stamp Duty Value) of the Income Tax Act:
The assessee argued that the sale was a slump sale under Section 50B, not subject to Section 50C. The Tribunal agreed, noting that the sale involved the entire business, which qualifies as a slump sale. The Tribunal referenced judicial precedents supporting the application of Section 50B over Section 50C in such cases.

3. Examination and inquiry by the Assessing Officer (AO) during the original assessment:
The Tribunal observed that the AO had examined the issue of capital gains and computed the short-term capital gain at ?22,86,227/-. The Tribunal found that the AO had conducted an inquiry and considered relevant details, contrary to the Pr. CIT's assertion of inadequate inquiry.

4. Adequacy of the inquiry conducted by the AO:
The Tribunal highlighted the distinction between "lack of inquiry" and "inadequate inquiry." It stated that even if the inquiry was inadequate, it could not be a ground for revision under Section 263. The Tribunal emphasized that the AO's order could not be termed erroneous merely because the Pr. CIT had a different opinion.

5. Whether the transaction was a slump sale or not:
The Tribunal concluded that the transaction was indeed a slump sale, as it involved the sale of the entire business. It referenced the Supreme Court's decision in C.I.T. vs. Equinox Solutions (P) Ltd., which held that such sales are covered by Section 50B. The Tribunal also cited the ITAT Lucknow Bench's decision in Laxmi Ice & Cold Storage vs. ITO, which supported the non-applicability of Section 50C to cold storage buildings.

6. Procedural errors and lack of opportunity for the assessee to present their case:
The assessee argued that the Pr. CIT did not provide sufficient opportunity to present their case. The Tribunal noted that the Pr. CIT's order was passed without proper consideration of the assessee's submissions and relevant judicial precedents. The Tribunal found that the Pr. CIT's action was procedurally flawed and lacked adequate reasoning.

Conclusion:
The Tribunal quashed the proceedings under Section 263, holding that the Pr. CIT's order was patently illegal. It emphasized that the AO's original assessment was neither erroneous nor prejudicial to the Revenue. The appeal of the assessee was allowed, and the order was pronounced in the open court on 17th September 2018.