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2019 (1) TMI 272 - AT - Income TaxRevision u/s 263 - Pr. CIT power to issue notice - value of property has been taken more than its value, was not available before the AO - Held that - It is an admitted fact that the ld. Pr. CIT passed the Assessment Order which could have been passed by the Assessing Officer only, since the powers has been given under Sections 143(3), 144, 147, 153A and 153C of the Act to the AO who has been defined u/s 2(7A) of the Act and means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-Section (1) or (2) of Section 120 or any other provision of this Act and the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under clause (b) of Sub-section (4) of the said Section but nowhere it is provided that the Pr. Commissioner can pass an assessment order. In the present case, the CIT-18, New Delhi passed the impugned order as an assessment order which has been mentioned on the front page of the order dated 31.03.2018 passed by the Pr. CIT, therefore, the said order was not a valid order u/s 263 of the Act. Moreover, nowhere the ld. Pr. CIT mentioned in the said order that there was any relevant material before him for the year under consideration to substantiate that the AO had not applied his mind while framing the original assessment u/s 143(3) of the Act rather the ld. Pr. CIT acted only on the basis of the valuation report obtained by the AO for the assessment year 2015-16 on 15.12.2017. It cannot be said that the Pr. CIT came to the conclusion on the basis of the relevant record pertaining to the assessment order under consideration i.e. assessment year 2013-14 that the order passed by the AO was prejudicial to the interest of the revenue or it was erroneous. On the contrary, the AO applied his mind and did not accept the revised claim of the assessee and had taken a possible view. It is well settled that the provisions of Section 55A of the Act provides that the AO may refer the matter to DVO for valuation of the property. The use of the word may makes it discretionary so it is not mandatory. In this case, it appears that the AO was satisfied from the valuation of the property, he did not refer the matter to the DVO and accepted the valuation report of the Registered Valuer (approved by the Govt.) which was furnished by the assessee. Therefore, it can be said that the AO has taken one of the possible view in this case, therefore, it cannot be said that the assessment order passed was erroneous or prejudicial to the interest of the revenue - decided in favour of assessee.
Issues Involved:
1. Initiation of proceedings under Section 263 of the Income Tax Act, 1961. 2. Verification and enquiries conducted by the Assessing Officer (AO). 3. Consideration of the original assessment order as erroneous and prejudicial to the interest of the revenue. 4. Discretionary powers of the AO under Section 55A. 5. Valuation report of the registered valuer. 6. Comparison of land valuation. 7. Enhancement of assessment and addition to the valuation of land and building. 8. Application of Explanation 2 to Section 263. 9. Authority to make an assessment order. 10. Reasonable opportunity of being heard. Detailed Analysis: 1. Initiation of Proceedings under Section 263: The assessee challenged the initiation of proceedings under Section 263 of the Income Tax Act, 1961 by the Principal Commissioner of Income Tax (Pr. CIT) against the original assessment order dated 30.11.2015. The Pr. CIT initiated these proceedings on the grounds that the original assessment order was erroneous and prejudicial to the interest of the revenue. 2. Verification and Enquiries by AO: The assessee argued that the AO had duly applied her mind and conducted the necessary verification and enquiries as required under law while passing the original order under Section 143(3) of the Act. The AO had examined the issue of capital gains in detail and had taken a reasoned decision based on the evidence provided. 3. Erroneous and Prejudicial Assessment Order: The Pr. CIT considered the original assessment order erroneous and prejudicial to the interest of the revenue because the AO did not refer the matter to the Valuation Officer under Section 55A for the assessment year 2015-16. The Pr. CIT observed that the AO had accepted the valuation report of the assessee without obtaining a valuation from the District Valuation Officer (DVO), which led to an underestimation of the property's value. 4. Discretionary Powers under Section 55A: The assessee contended that the AO had the discretionary power under Section 55A to refer the matter to the Valuation Officer, and the AO's decision not to do so was within her jurisdiction. The AO had adopted one of the permissible courses in law, and the Pr. CIT's disagreement with the AO's decision did not render the assessment order erroneous. 5. Valuation Report of Registered Valuer: The AO had accepted the valuation report submitted by the assessee from a registered valuer, which was on record. The Pr. CIT's decision to rely on the DVO's report for the subsequent assessment year (2015-16) was challenged by the assessee as it was not relevant to the assessment year under consideration (2013-14). 6. Comparison of Land Valuation: The Pr. CIT upheld the action of the successor AO for the assessment year 2015-16, where the land at Vasant Vihar was compared with the land at Safdarjung Enclave to determine the fair market value as of 01.04.1981. The assessee argued that this comparison was not appropriate and led to an incorrect valuation. 7. Enhancement of Assessment: The Pr. CIT enhanced the assessment by making an addition of ?50,21,603 to the valuation of land and building for capital gains. The assessee challenged this addition, arguing that the original valuation was based on a registered valuer's report and was reasonable. 8. Application of Explanation 2 to Section 263: The assessee argued that Explanation 2 to Section 263, effective from 01.06.2015, was not applicable to the relevant assessment year (2013-14). The Pr. CIT had invoked this explanation to justify the revision of the assessment order. 9. Authority to Make Assessment Order: The assessee contended that only an AO has the authority to pass an assessment order under the Income Tax Act. The Pr. CIT's action of passing the assessment order himself was challenged as being beyond his jurisdiction. 10. Reasonable Opportunity of Being Heard: The assessee argued that the order under Section 263 was passed in haste without providing a reasonable opportunity of being heard. The show-cause notice was received on 26.03.2018, and the hearing was fixed for 28.03.2018, with the matter being adjourned to 29.03.2018, a gazetted holiday. The Pr. CIT passed the order on 31.03.2018, without giving the assessee sufficient time to present his case. Conclusion: The Tribunal quashed the order passed by the Pr. CIT and restored the original assessment order passed by the AO. It was held that the AO had taken a possible view after due application of mind and the assessment order was neither erroneous nor prejudicial to the interest of the revenue. The Pr. CIT's action of passing the assessment order himself was beyond his jurisdiction, and the proceedings under Section 263 were initiated without proper justification. The appeal of the assessee was allowed.
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