2019 (5) TMI 752 - HC - Income Tax

Revision u/s 263 after Reopening of assessment initiated - applicability of the provisions of Section 50C while computing the capital gains - enquiry by AO - HELD THAT - Tribunal recorded findings of fact to the effect that the Assessing Officer actually carried out an enquiry after the reopening of the proceedings and that once there was an application of mind, on the part of the Assessing Officer, it was not open to the Commissioner to invoke the jurisdiction u/s 263 It is seen from the Order of the Commissioner u/s 263 that the Assessment was actually reopened on the ground that the assessee did not offer capital gains. The reopening was u/s 148 after issuing notice u/s 147. Thereafter, the assessment was completed u/s 143(3). In such circumstances, what the Commissioner attempted to do by invoking Section 263 of the Act was only to re-appreciate the facts. Since it is not permissible, the appeal does not give rise to any substantial question of law. Hence, it is dismissed.

Summary

Issues:
1) Validity of order under Section 263 of the Income Tax Act
2) Taxation of short term capital gains on sale of immovable property
3) Applicability of Section 2(47)(v) of the Income Tax Act
4) Invocation of Section 263 in case of wrong conclusion by Assessing Officer

Issue 1: Validity of order under Section 263 of the Income Tax Act
The appeal raised the question of whether the order of the Tribunal was erroneous and if the jurisdiction exercised by the Commissioner under Section 263 was lawful. The Tribunal found that the Assessing Officer had conducted an inquiry after reopening proceedings, indicating application of mind, which precluded the Commissioner from invoking Section 263. The High Court held that this factual finding did not present a substantial question of law, as the Commissioner's attempt to re-appreciate facts was impermissible, leading to the dismissal of the appeal.

Issue 2: Taxation of short term capital gains on sale of immovable property
The case involved the sale of an immovable property by the assessee, with the Revenue contending that short term capital gains were not appropriately assessed. The Commissioner issued a notice under Section 263, alleging under-assessment of short term capital gains. The Tribunal's order favored the assessee, prompting the Revenue's appeal. The High Court noted the reopening of assessment under Section 147, completion under Section 143(3), and the Commissioner's attempt to apply Section 50C for capital gains computation. Ultimately, the Court upheld the Tribunal's decision, emphasizing that the Commissioner's action did not raise a substantial legal question.

Issue 3: Applicability of Section 2(47)(v) of the Income Tax Act
Another point of contention was whether the transaction fell under Section 2(47)(v) of the Income Tax Act. The Tribunal's order did not address this aspect, leading to the Revenue's appeal. However, the High Court did not find this issue substantial for legal review, as the Commissioner's invocation of Section 263 was deemed impermissible due to the Assessing Officer's prior inquiry and application of mind.

Issue 4: Invocation of Section 263 in case of wrong conclusion by Assessing Officer
The final issue revolved around the Assessing Officer's alleged wrong conclusion regarding the taxation of capital gains. The Tribunal's decision to not invoke Section 263 despite indications of short term capital gains being taxable was challenged by the Revenue. However, the High Court reiterated that the Commissioner's attempt to re-evaluate facts through Section 263 was not permissible, leading to the dismissal of the appeal. Consequently, any pending petitions were also dismissed, with no costs awarded.