2019 (9) TMI 1178 - AT - Income Tax

Revision u/s 263 - undisclosed income in the garb of bogus long term capital gains - HELD THAT - The opportunity was specifically sought but denied. The breach of sacrosanct opportunity expressly enjoined by the legislature in Section 263 is fundamental and goes to the root of the issue. It is not open to proceed to frame the revisional order by overriding express intent of law. Such flaw is fatal which seeks to ensue civil consequences and effects the rights of the assessee in a completed matter. The provisions of Section 263 of the Act expressly enjoin providing opportunity. The assessee had on its part has exercised its right to seek background information to enable it to file an informed defense. The dissuasion of such categorical request renders the action of the Revisional Commissioner incompetent in law. The total absence of opportunity alone renders the revisional order null and void. Also peep into another line of defense on behalf of the assessee. The assessee has admittedly filed the primary evidence in the course of the assessment. PCIT however seeks to rely upon certain additional information which appears to transcend the bonafides of the transactions. It was thus incumbent upon the PCIT to undertake a minimal inquiry himself with regard to the claim of bonafides before remanding the matter back to the AO. Most significantly, in the instant case, as noted above, the matter has been remanded to actually carry out the conclusions already drawn by the PCIT unilaterally which conclusions gives the infallible impression of it being absolute and rigid. PCIT has thus actually foreclosed the matter without opportunity. Therefore, the whole exercise of remanding the matter back to the AO is only a pretense and an empty formality. Such act of the PCIT thus cannot be endorsed when seen in entirety. The contentions of the assessee on palpable illegality in the order passed u/s 263 of the Act merits acceptance. Revisional action under Section 263 of the Act in unsustainable in law on two counts; (i) A revisional action which began with a nondescript notice and culminated in revisional order without any effective opportunity despite specific request is an order passed in blatant transgression of natural justice (ii) The Revisional CIT made an unflinching and adverse conclusion in the league of finality (without granting any opportunity) and closed the door for the assessee before the AO while setting aside the order of AO. The enquiry or investigation set in motion in the proceedings before the AO in pursuance to the revisional order is clearly a pretense and an empty formality. The AO was effectively asked to obdurately adhere to the pre-conceived observations made in the revisional order of ex parte nature. Such directions are clearly unsustainable. Fatal error committed towards lack of effective opportunity and conclusive averments made in the revisional order, consequential action of setting aside the assessment order is a nullity. Such revisional order thus deserves to merge in void and disappear. Hence, we thus do not consider it necessary to dwell upon other aspects of the maintainability of revisional order. We may however hasten to add at this juncture that our observations are limited to the correctness of process of framing revisional order u/s 263 of the Act and should not in any manner be read as our expressions on merits. - Decided in favour of assessee.

Issues Involved:
1. Legality of the Principal Commissioner of Income Tax (PCIT) exercising revisionary powers under Section 263 of the Income Tax Act.
2. Alleged violation of principles of natural justice by the PCIT.
3. Adequacy of the inquiry conducted by the Assessing Officer (AO) regarding the long-term capital gains claimed by the assessee.
4. Validity of the PCIT's direction to the AO to reassess the case.

Detailed Analysis:

1. Legality of the PCIT Exercising Revisionary Powers Under Section 263 of the Income Tax Act:

The assessee contended that the PCIT was not justified in exercising revisionary powers under Section 263 of the Income Tax Act. The PCIT had set aside the assessment order passed by the AO under Section 143(3) and directed a de novo assessment, alleging that the AO had failed to verify the long-term capital gains claimed by the assessee. The Tribunal noted that the AO had indeed conducted an inquiry by issuing a questionnaire and receiving detailed responses from the assessee, including demat statements and bank statements. The Tribunal found that the AO had scrutinized these documents and accepted the claim of long-term capital gains after proper verification.

2. Alleged Violation of Principles of Natural Justice by the PCIT:

The assessee argued that the PCIT violated the principles of natural justice by not providing a proper opportunity to be heard and by not supplying the details of the information that led to the revision under Section 263. The Tribunal observed that the PCIT issued a solitary show cause notice and did not respond to the assessee's request for additional information to defend the case effectively. The Tribunal emphasized that the right to a fair hearing is a fundamental principle of natural justice, and the PCIT's failure to provide the requested information and opportunity rendered the revisional order a nullity.

3. Adequacy of the Inquiry Conducted by the AO Regarding the Long-Term Capital Gains Claimed by the Assessee:

The Tribunal noted that the AO had conducted an inquiry by issuing a questionnaire and receiving detailed responses from the assessee, including demat statements and bank statements. The AO had scrutinized these documents and accepted the claim of long-term capital gains after proper verification. The PCIT, however, alleged that the AO had failed to make any verification and investigation into the genuineness of the transactions. The Tribunal found that the PCIT's conclusion was based on information from the Investigation Wing, which was not shared with the assessee, and that the PCIT had not conducted any minimal inquiry himself before remanding the matter back to the AO.

4. Validity of the PCIT's Direction to the AO to Reassess the Case:

The Tribunal found that the PCIT's direction to the AO to reassess the case was an empty formality, as the PCIT had already reached a conclusive and adverse finding against the assessee without providing an opportunity to rebut the allegations. The Tribunal held that the PCIT's action was in violation of the principles of natural justice and rendered the revisional order a nullity. The Tribunal quashed the revisional order, emphasizing that the lack of effective opportunity and the conclusive nature of the PCIT's findings left no scope for the AO to apply his own mind.

Conclusion:

The Tribunal concluded that the revisional action under Section 263 of the Income Tax Act was unsustainable in law due to the violation of principles of natural justice and the conclusive and adverse findings made by the PCIT without providing an effective opportunity to the assessee. The Tribunal quashed the revisional order and allowed the appeal of the assessee.

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