2020 (1) TMI 328 - HC - Income Tax

Revision u/s 263 - dropping of proceedings by the AO - internal order - whether an order that can be revised u/s 263 - it is contended that decision taken to drop the proceeding initiated pursuant to section 148 though not communicated was nevertheless an order - HELD THAT - The decision to drop the proceeding has not been communicated to the petitioner. As long as such decision had remained in the files, invocation of jurisdiction under section 263 of the Income Tax Act, 1961 would have been premature. However, once the aforesaid decision is communicated and made known to the petitioner, such decision would be amenable to revision under section 263 of the Income Tax Act, 1961. In this case, the decision has been communicated. Therefore, no reasons to interfere at the stage. Therefore, leave the issue open to be decided by the 1st respondent on merits. Petitioner shall make all submissions on merit including their defence pertaining to jurisdiction. Since the impugned notice is of the year 2003, the authority/respondent is requested to pass appropriate orders within a period of 3 months from the date of this receipt of this order. Writ Petition is disposed with the above directions

Summary

Issues:
Challenge to notice under Section 263 of the Income Tax Act; Communication of decision to drop proceeding; Bar on limitation for invoking Section 263; Capital gains on conversion of partnership into a company; Jurisdiction of invoking Section 263; Timeliness of invoking Section 263.

Analysis:
The petitioner challenged an impugned notice under Section 263 of the Income Tax Act, citing that the decision to drop the proceeding was not communicated to them, making it premature for invoking jurisdiction under Section 263. The petitioner contended that the notice issued in 2003 was time-barred as the original assessment order was from 1998. The petitioner also raised the issue of capital gains from converting a partnership into a company, referencing relevant case law. The petitioner argued that the invocation of Section 263 was without jurisdiction, supported by various legal precedents.

The respondent defended the impugned order, stating that the decision taken in 2002, even if not communicated, constituted an order, justifying the invocation of Section 263. The respondent maintained that the power to revise an order prejudicial to revenue interest was valid in this case. The respondent argued that the invocation of Section 263 was timely and within the scope of the Act, contrary to the petitioner's claims.

Upon considering the submissions from both parties, the court found that the decision to drop the proceeding had been communicated to the petitioner, rendering it amenable to revision under Section 263. The court left the issue open for the respondent to decide on merits, instructing them to pass appropriate orders within three months from the date of the order. The writ petition was disposed of with these directions, without imposing any costs.