2022 (1) TMI 1025 - AT - Income Tax

Revision u/s 263 by CIT - difference in guidelines value for plots purchase - in absence of books of account AO estimated the income from civil construction business @ 10% - HELD THAT - Assessee has claimed that he has to make Bank FDR for providing Bank Guarantee and security deposit to the Government Department. It is also claimed by the assessee that CC Limit used for business purpose and interest of ₹ 10,08,020/- was paid to Bank of India on the CC limit. It is also claimed that interest on FDs as the nature of business income. Find no merit in this contention of assessee because books of account are not maintained, no such details were ever filed during the course of assessment proceedings. Assessee has himself declared the income on estimated basis. Even AO has also estimated the income on estimated basis so all expenditures if any incurred for the business are deemed to have been allowed. The fixed deposit on which interest was received at ₹ 9,97,465/- and interest on Shri Lokesh Narang at ₹ 45,970/- are in the nature of business income or income from other sources remained to be examined by the ld. Assessing Officer. Therefore in our considered view this issue was rightly remitted to the Ld. Assessing Officer for examination so as to compute the correct income of the assessee. Assessee has purchased 51 residential plots on 12.09.2014 out of which six plots were sold during the year on which the assessee has claimed capital loss - Firstly the assessee has not furnished complete details of plots purchased, and secondly there was no information about the source of investment. Even AO has not raised any query about the details of plots purchased, purchase consideration paid, fair market value of the property/valuation as per stamp valuation authority, whether they are part of business transaction and most importantly source of investment to purchase these properties. The information called by the AO as well as the assessment order are silent on this issue. It is also noteworthy that in the computation of income assessee has shown income from house property, profit and gain of business, income from sale and profit of firm, income from capital gain and income from other source and after claiming the deduction u/s 80C of the Act total income has been shown at ₹ 49,15,731/- whereas surprisingly on looking to the assessment order dated 30.12.2017 we find that the assessment has been completed only by estimating the income @10% on the turnover disclosed by the assessee at ₹ 8,08,21,143/-. Ld. Assessing Officer has not made any reference of various other incomes shown by the assessee in its computation of income. This fact in itself shows that there is no application of mind by AO in framing the assessment order for A.Y. 2015-16 in the case of assessee and there is complete lack of enquiry by him on the issues raised in the impugned order. We, therefore, under the given facts and circumstances of the case and our discussions made herein above, are of the considered view that assessment order framed by the Ld. AO is erroneous as well as prejudicial to the interest of revenue and Ld. Pr. CIT has rightly set aside the same. - Decided against assessee.

Summary

Issues Involved:
1. Legality of the order passed by the Ld. CIT u/s 263.
2. Erroneous and prejudicial nature of the AO's order to the interest of the revenue.
3. Scrutiny and verification of facts by the AO.
4. Application of net profit from the contract.
5. Applicability of section 263 provisions due to the merger of the AO's order with the Tribunal's order.

Issue-wise Detailed Analysis:

1. Legality of the Order Passed by the Ld. CIT u/s 263:
The assessee challenged the legality of the Ld. CIT's order under section 263 of the Act, claiming it was illegal and bad in law. The Tribunal examined the grounds and found that the Ld. CIT had rightly invoked section 263, as the assessment order was deemed erroneous and prejudicial to the interest of the revenue. The Tribunal upheld the Ld. CIT's decision to set aside the assessment order for a detailed examination by the AO.

2. Erroneous and Prejudicial Nature of the AO's Order:
The Ld. CIT identified that the AO's order was erroneous and prejudicial to the revenue's interest for several reasons:
- The assessee did not include interest income from the Bank of India and Shri Lokesh Narang in the total turnover or under "income from other sources."
- The assessee made cash payments for purchasing plots, which were not allowable under section 40A(3).
- The capital loss claimed by the assessee on the sale of plots was not properly examined.

The Tribunal agreed with the Ld. CIT's findings, emphasizing the lack of proper examination by the AO on these issues.

3. Scrutiny and Verification of Facts by the AO:
The assessee argued that the assessment was framed after due scrutiny of facts and verification of details. However, the Tribunal noted that the AO did not maintain books of account and failed to scrutinize the details of interest income, the purchase and sale of plots, and the source of investment. The Tribunal concluded that the AO's lack of inquiry rendered the assessment order erroneous and prejudicial to the revenue's interest.

4. Application of Net Profit from the Contract:
The assessee declared a net profit of 5% on the total turnover, whereas the AO estimated the net profit at 10%. The Tribunal found that the AO's estimation was based on the absence of books of account and proper records. The Tribunal upheld the Ld. CIT's decision to remit the issue back to the AO for a thorough examination to determine the correct income.

5. Applicability of Section 263 Provisions Due to the Merger of the AO's Order with the Tribunal's Order:
The assessee contended that the AO's order had merged with the Tribunal's order, making section 263 provisions inapplicable. The Tribunal clarified that the impugned order under section 263 pertained to the assessment year 2015-16, while the Tribunal's earlier order related to the assessment year 2014-15. Therefore, the merger argument was irrelevant, and the Tribunal dismissed this ground.

Conclusion:
The Tribunal dismissed the appeal filed by the assessee, confirming the Ld. CIT's order under section 263. The Tribunal found that the AO's assessment was erroneous and prejudicial to the revenue's interest due to the lack of proper scrutiny and verification of facts. The Tribunal directed the AO to re-examine the issues raised by the Ld. CIT to compute the correct income of the assessee.