2019 (2) TMI 53 - AT - Income Tax

Revision u/s 263 - CIT(A) jurisdiction to adjudicate the issues raised in the consequential order afresh - Held that - Order u/s 263 the CIT has set aside the assessment made under section143(3) r.w.s.147 for redoing the assessment afresh by using the words to pass consequential order after giving opportunity to the assessee. Therefore the assessment order passed u/s 143(3) r.w.s. 263 dated 17.09.2014 required to be considered as a fresh order of assessment and the CIT(A) vests with the jurisdiction to adjudicate the issues raised in the consequential order afresh on merits. In the instant case, the CIT(A) did not pass the order on merits, instead presumed that the assessee having not filed the appeal before the ITAT accepted the order u/s 263. The said presumption is incorrect in view of the confusion created by the Ld.CIT in his order u/s 263. Therefore, it is incumbent upon the CIT(A) to decide the issue on merits. Accordingly, we set aside the order of the CIT(A) and remit the matter back to the file of the Ld.CIT(A) to decide the appeal of the assessee afresh on merits. The assessee is free to take up all the grounds relating to merits before the CIT(A). - Appeals of the assessee are allowed for statistical purpose.

Summary

Issues Involved:
1. Delay in filing the appeal against the order passed under Section 263.
2. Validity and consequences of the revision order passed under Section 263.
3. Entitlement of the assessee to claim exemption under Section 54B of the Income Tax Act.
4. Jurisdiction and duty of the CIT(A) to adjudicate the appeal on merits.

Detailed Analysis:

1. Delay in Filing the Appeal Against the Order Passed Under Section 263:
The assessee filed an appeal with a delay of 760 days against the order of the Commissioner of Income Tax (CIT) passed under Section 263. The assessee requested condonation of the delay, citing ignorance of tax laws and reliance on a tax consultant who advised filing an appeal against the order under Section 143(3) read with Section 263 instead of a separate appeal against the order under Section 263. The Tribunal, after hearing both parties, found the reasons provided by the assessee neither convincing nor satisfactory and thus dismissed the appeal due to the delay.

2. Validity and Consequences of the Revision Order Passed Under Section 263:
The CIT initiated revision proceedings under Section 263, finding that the assessee had incorrectly claimed an exemption under Section 54B for the sale of land. The CIT observed that the assessee deposited the sale consideration in fixed deposits instead of acquiring exempted assets or depositing the amount in specified accounts. Consequently, the CIT directed the AO to withdraw the exemption allowed under Section 54B, as it was not in accordance with the provisions of the Income Tax law. The AO, following the CIT's direction, withdrew the exemption and determined the long-term capital gains. The CIT(A) dismissed the appeal by the assessee, stating that the CIT's direction under Section 263 was clear and binding, and the assessee's failure to appeal against the order implied acceptance of the CIT's findings.

3. Entitlement of the Assessee to Claim Exemption Under Section 54B:
The assessee argued that the CIT's order was confusing, as it gave the impression that the assessment was set aside for redoing, allowing the assessee the right to appeal. The Tribunal noted that the CIT's order contained contradictory directions, creating confusion. While the CIT directed the AO to withdraw the exemption, the concluding paragraphs suggested that the assessment was set aside for redoing after giving the assessee an opportunity to be heard. The Tribunal emphasized that when there is ambiguity, the interpretation beneficial to the assessee should be adopted. Thus, the Tribunal concluded that the CIT's order should be considered as setting aside the assessment for redoing, allowing the assessee to appeal.

4. Jurisdiction and Duty of the CIT(A) to Adjudicate the Appeal on Merits:
The Tribunal held that the CIT(A) erred in dismissing the appeal summarily without addressing the merits. The Tribunal reiterated that the CIT's contradictory directions created confusion, and the CIT(A) should have adjudicated the appeal on merits. The Tribunal referred to a similar case where it was held that the CIT(A) is bound to decide the appeal on merits when the assessment is set aside for redoing. Consequently, the Tribunal set aside the order of the CIT(A) and remitted the matter back to the CIT(A) to decide the appeal afresh on merits, allowing the assessee to present all grounds related to the merits.

Conclusion:
The appeals were allowed for statistical purposes, with the Tribunal directing the CIT(A) to reconsider the appeal on merits, taking into account the ambiguity in the CIT's order and ensuring the assessee's right to a fair hearing. The Tribunal emphasized the importance of clear and unambiguous directions in revision orders to avoid depriving taxpayers of their legal rights.