2022 (8) TMI 85 - AT - Income Tax

Revision u/s 263 - CIT, examining the assessment record, found a substantial difference between the stated consideration and the stamp valuation thus Section 56(2)(vii)(b)(ii) deemed the same as the income of the purchaser, an aspect of the matter which the AO ought to have, in his view, examined, though had failed to - HELD THAT - As on, the applicability or otherwise of s. 56(2)(vii)(b)(ii) is within the scope of the limited scrutiny in the instant case. Any provision of law incident on the transaction under scrutiny, would fall to be considered, and the enquiry by the AO in the instant case, for example, could not be said to be limited to the applicability of s. 69 alone. Reference for the purpose may be made to the decisions by the Jabalpur Bench of the Tribunal in Vishal Sethi 2020 (9) TMI 407 - ITAT JABALPUR and Nitin Sharma 2020 (10) TMI 75 - ITAT JABALPUR . The assessee has fairly not contested this aspect. As regards the revision order, the same cannot be regarded as infirm on account of remission of the matter for examination and adjudication by the AO considering that there has admittedly been no examination/consideration by him in the matter. It is trite law that the order becomes per se erroneous and prejudicial to the interests of the Revenue, liable for revision, in the absence or lack of enquiry, which ought to have been made in the facts and circumstances of the case, i.e., for non-application of mind ( In fact, even on merits, we find no case having been set-up or canvassed before the revisionary authority, for it to be contended, as was before us, that the revisionary authority ought to have under the circumstances decided the matter himself, even as the same would not extend to redoing the assessment himself. As the provisions of Registration and Other Relevant Laws (Amendment) Act, 2001 may also be relevant in the matter. Further still, the property under reference, as a perusal of the sale deed , also read-out during hearing, shows, is a lease , so that there can apparently be no sale , which implies transfer of absolute rights, i.e., on freehold basis. That is, even on merits of the assessee s case before us, the matter has been, in the facts and circumstances of the case, rightly remitted by the ld. Pr. CIT to the file of the assessing authority for fresh consideration. Sure, the AO having not considered this aspect of the matter at all, there was no occasion for the assessee to clarify anything thereto, much less qua the date of transfer, which forms the fulcrum of his case/s. It does not, however, lie in the mouth of the assessee, who explained the source of the investment in property purchased during the year , to contend that the date of the said purchase falls in the immediately preceding year i.e., in the facts and circumstances of the case and the law in the matter. Even so, being admittedly germane, and an aspect not looked into, be not examined, which is what in effect the ld. Pr. CIT in exercise of his revisionary power requires the assessing authority to do. We may though, as a matter of abundant caution, clarify that it is not a case of approval of the impugned order on ground/s different from that assumed by the revisionary authority, which is impermissible, but merely explaining the untenability of the assessee s argument/case before us. - Decided against assessee.

Summary

Issues:
Challenge to set aside assessments under section 143(3) of the Income Tax Act, 1961 for Assessment Year 2014-15 due to discrepancy in property valuation.

Analysis:
1. The assessments of two brothers were set aside by the Principal Commissioner of Income Tax-1, Jabalpur, due to a substantial difference between the stated consideration and stamp valuation of a jointly purchased property. The failure of the Assessing Officer (AO) to examine the applicability of section 56(2)(vii)(b)(ii) was deemed erroneous and prejudicial to revenue, leading to the assessments being challenged before the Tribunal.

2. The appellant's counsel argued that the sale of the property was complete before the relevant financial year, citing legal provisions from the Registration Act and Transfer of Property Act. However, the AO's lack of inquiry into the source of investment raised doubts about the assessment's validity. The revisionary authority's decision to remit the matter for further examination by the AO was considered reasonable given the lack of inquiry by the AO.

3. The Tribunal observed that the AO failed to consider the application of section 56(2)(vii)(b)(ii) and the inconsistencies in the dates of investment sources. The revision order was found valid as the AO's lack of inquiry rendered the assessment erroneous and prejudicial to revenue. The Tribunal declined to interfere with the impugned order, emphasizing the need for a fresh consideration of the case by the assessing authority.

4. The legal arguments presented by the appellant's counsel were deemed insufficient to challenge the revision order, as the matter required a detailed examination of property ownership, registration implications, and relevant legal provisions. The Tribunal upheld the dismissal of the appeals, emphasizing the importance of proper inquiry and examination in tax assessments.

This detailed analysis highlights the key legal issues, arguments presented, and the Tribunal's decision regarding the disputed assessments under the Income Tax Act, 1961.