2022 (6) TMI 1150 - AT - Income Tax

Revision u/s 263 - As per CIT penalty proceedings u/s.270A not initiated by AO - observation of underreporting or misreporting of incom - HELD THAT - We find that although the Hon ble Allahabad High Court in the case of CIT v. Surendra Prasad Aggarwal ( 2004 (9) TMI 45 - ALLAHABAD HIGH COURT has uphold 263 order passed by the PCIT for initiation of penalty proceedings, but the jurisdictional the Hon ble Madras High Court in the case of CIT v. Chennai Metro Rail Ltd. ( 2018 (3) TMI 1586 - MADRAS HIGH COURT has taken a contrary view after considering the decision of the Hon ble Allahabad High Court in the case of CIT v. Surendra Prasad Aggarwal(supra), and held that in the absence of any findings in the assessment order regarding underreporting or misreporting of income, the PCIT cannot revise the assessment order to initiate penalty proceedings. Therefore, we are of the considered view that the PCIT has erred in invoking revisional powers u/s.263 of the Act, and set aside the assessment order to initiate penalty proceedings u/s.270A of the Act, because, the AO has chosen not to initiate penalty proceedings. The PCIT cannot substitute his views and observed that, the AO has passed erroneous order which resulted in loss of Revenue to the Department. We are of the considered view that the assessment order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue and thus, we are of the considered view that the PCIT is erred in revising the assessment order u/s.263 of the Act. Hence, we quashed the revision order passed by the PCIT u/s.263 of the Act. - Decided in favour of assessee.

Summary

Issues:
1. Revision order under section 263 of the Act by PCIT
2. Direction to initiate penalty proceedings under section 270A of the Act
3. Assessment order passed without initiating penalty proceedings
4. Jurisdiction of PCIT to revise assessment order
5. Observations of underreporting or misreporting of income
6. Interpretation of provisions of Sec.270A of the Act
7. Application of revisionary powers by PCIT
8. Conflict of decisions by different High Courts

Analysis:

Issue 1: Revision order under section 263 of the Act by PCIT
The appeal was against the order of the Principal Commissioner of Income Tax (PCIT) under section 263 of the Act, revising the assessment order for the assessment year 2017-18.

Issue 2: Direction to initiate penalty proceedings under section 270A of the Act
The PCIT directed the Assessing Officer (AO) to initiate penalty proceedings under section 270A of the Act pertaining to re-computation of capital gains. The PCIT found the assessment order to be erroneous and prejudicial to the interest of the Revenue due to the omission of penalty proceedings.

Issue 3: Assessment order passed without initiating penalty proceedings
The AO completed the assessment without initiating penalty proceedings under section 270A of the Act, leading to the revision proceedings initiated by the PCIT.

Issue 4: Jurisdiction of PCIT to revise assessment order
The PCIT invoked revisionary powers under section 263 of the Act based on the omission of penalty proceedings by the AO, leading to the revision of the assessment order.

Issue 5: Observations of underreporting or misreporting of income
The PCIT opined that there was underreporting or misreporting of income due to the disallowance of long term capital gains claim and directed the AO to re-do the assessment.

Issue 6: Interpretation of provisions of Sec.270A of the Act
The provisions of section 270A of the Act deal with the levy of penalty for underreporting or misreporting of income. The AO had made additions but did not initiate penalty proceedings as there was no finding of underreporting or misreporting of income.

Issue 7: Application of revisionary powers by PCIT
The PCIT exercised revisionary powers based on the omission of penalty proceedings by the AO, citing underreporting or misreporting of income as the reason for revising the assessment order.

Issue 8: Conflict of decisions by different High Courts
There was a conflict of decisions between the High Courts regarding the PCIT's jurisdiction to revise the assessment order for the initiation of penalty proceedings under section 270A of the Act. The Tribunal relied on the decision of the Hon'ble Madras High Court and held that the PCIT erred in revising the assessment order.

In conclusion, the Tribunal allowed the appeal, quashing the revision order passed by the PCIT under section 263 of the Act, as the assessment order was deemed neither erroneous nor prejudicial to the interest of the Revenue.