2019 (12) TMI 696 - AT - Income Tax

Revision u/s 263 - HELD THAT - CIT has not invoked Explanation 2 to S. 263 either in the show cause notice or in the order passed u/s. 263. Even otherwise, Explanation 2 is not applicable as assessing officer has made the inquiry and verification which ought to have been made. Further, it is submitted that the coordinate bench in the case of Narayan Tatu Rane 2016 (5) TMI 1162 - ITAT MUMBAI held that Explanation cannot said to have overridden the law as interpreted by the various High Courts, where the High Courts have held that before reaching a conclusion that the order of the AO is erroneous and prejudicial to the interest of revenue, the Commissioner himself has to undertake some enquiry to establish that the assessment order is erroneous and prejudicial to the interest of Revenue. And the Explanation 2 to section 263 was inserted from 01.06.2015 and it is not applicable retrospectively as held in the case of Santi Krupa Estate Pvt. Ltd. vs. ACIT 2016 (9) TMI 1341 - ITAT AHMEDABAD . In the present case as well as the legal proposition laid down by the higher courts we are of the view that in the present case the AO had made enquiry and assessee has also placed on record all the documents as were required by the AO in respect of both the issues as now raised by the Pr.CIT. Thus, the order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue. Merely just because the view taken by the AO was not found acceptable does not mean that the AO has failed to make requisite enquiries. AO was plausible view, which cannot be disturbed by the Ld. Pr.CIT. Therefore, Pr.CIT was not correct in exercise the jurisdiction u/s 263 - We quash the assessment proceedings initiated by the Pr.CIT in the impugned order passed under section 263 and allow the appeal of the assessee. - Appeal of the assessee is allowed.

Issues Involved:
1. Initiation of proceedings under Section 263 of the Income Tax Act, 1961.
2. Assumption of jurisdiction under Section 263.
3. Violation of principles of natural justice.
4. Passing of a non-speaking order.
5. Allegation of the order being a 'change in opinion'.
6. Verification of allowability or the source of expenditure claimed.
7. Validity of the entire proceedings.
8. Setting aside the assessment order without pointing out specific errors.

Detailed Analysis:

1. Initiation of Proceedings under Section 263:
The assessee contended that the Principal Commissioner of Income Tax (Pr.CIT) erred in initiating proceedings under Section 263 of the Income Tax Act, 1961. The assessment for the year 2009-10 was finalized under Section 143(3) read with Section 153A, determining the total income. The Pr.CIT noted that expenses of ?18,79,58,511 incurred for land purchase and development were not adequately enquired by the Assessing Officer (AO) during the assessment proceedings, leading to the order under Section 263.

2. Assumption of Jurisdiction under Section 263:
The assessee argued that the Pr.CIT wrongly assumed jurisdiction under Section 263, claiming the assessment order was neither erroneous nor prejudicial to the interest of the revenue. The AO had issued a show cause notice under Section 142(1) and conducted inquiries into the source of funds and expenses, which the assessee duly responded to with detailed explanations and supporting documents.

3. Violation of Principles of Natural Justice:
The assessee claimed that the Pr.CIT violated principles of natural justice by not mentioning the grounds for initiating action under Section 263 in the show cause notice, rendering the order void ab initio. The Pr.CIT failed to consider the detailed replies and explanations provided by the assessee during the assessment proceedings.

4. Passing of a Non-Speaking Order:
The assessee contended that the Pr.CIT did not pass a speaking order addressing the submissions made by the assessee, thus making the order under Section 263 void ab initio. The Pr.CIT's order lacked specific reasons or rebuttals to the explanations provided by the assessee.

5. Allegation of the Order Being a 'Change in Opinion':
The assessee argued that the Pr.CIT's order was merely a 'change in opinion' and not based on any new evidence or lack of inquiry by the AO. The AO had already verified the expenses and sources of funds during the assessment proceedings, and the Pr.CIT's action was unreasonable and uncalled for.

6. Verification of Allowability or the Source of Expenditure Claimed:
The assessee provided detailed explanations and documents regarding the source of funds and expenses incurred for land purchase and development. The AO had accepted these explanations and assessed the income accordingly. The Pr.CIT's order did not point out any specific errors or inadequacies in the AO's inquiry.

7. Validity of the Entire Proceedings:
The assessee argued that the entire proceedings under Section 263 were invalid as the assessment order was already framed under Section 143(3) read with Section 147, with due inquiry and verification by the AO. The Pr.CIT's action was based on a different opinion rather than any specific errors in the original assessment.

8. Setting Aside the Assessment Order without Pointing Out Specific Errors:
The Pr.CIT set aside the assessment order without pointing out specific errors or how the order was prejudicial to the interest of the revenue. The assessee contended that the AO had made proper inquiries and accepted the explanations provided, making the assessment order neither erroneous nor prejudicial to the revenue.

Conclusion:
The Tribunal concluded that the AO had made adequate inquiries and the assessment order was neither erroneous nor prejudicial to the interest of the revenue. The Pr.CIT's order under Section 263 was quashed, and the appeal of the assessee was allowed. The Tribunal emphasized that merely having a different opinion or considering the inquiry inadequate does not justify the exercise of jurisdiction under Section 263. The AO's view was a plausible one, and the Pr.CIT's action was not warranted.

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