2022 (10) TMI 1120 - HC - Income Tax

Revision u/s 263 by CIT - assessee had purchased the property in question with an intention to build Tech Park, but due to recession, the building was not constructed and as the firm had no funds, assessee sold the land - HELD THAT - A careful analysis of the facts of the case indicate that although the property was purchased with an intention to construct a Tech Park, the same was sold for want of funds. No development whatsoever was made by the assessee. There is no expenditure incurred for anything other than for interest, professional charges and brokerage. This aspect has been considered by the Assessing Officer and he has taken a view that assessee was liable to pay the Capital gains. In the order u/s 263 Commissioner has recorded that the AO has wrongly treated the land as 'Capital asset'. As further recorded in assessee's transaction was a solitary transaction and no construction of building nor any development activity was made. This factual finding that the transaction was a solitary transaction and no development activity was made, is in consonance with the facts recorded by the AO. The only difference is, AO has taken a view that for any purchase or sale of a land, assessee is liable to pay the capital gains tax and the Commissioner has taken a different view. In view of the authority in Malabar Industrial Company Limited. 2000 (2) TMI 10 - SUPREME COURT merely because two plausible views are available and the AO has taken one view, the jurisdiction u/s 263 cannot be exercised. Invoking Section 263 in the facts and circumstances of the case was erroneous. Consequently, the first question as to whether the Tribunal was right in holding that there was no infirmity in the order of revision, requires interference and the said finding needs to be set-aside. Whether the Tribunal was right in holding that no enquiry was made by the AO during the original assessment proceedings? - In view of the admitted facts that the land was purchased and sold without any development, no elaborate enquiry was required and the AO has noted the facts required for the case and passed the AO. Decided in favor of assessee.

Issues:
1. Interpretation of Section 263 of the Income Tax Act
2. Classification of income from property sale as Capital Gains or Business Income
3. Treatment of property as Capital Asset or Stock-in-trade
4. Validity of expenses incurred in connection with property transfer

Analysis:

Issue 1: Interpretation of Section 263 of the Income Tax Act
The appeal challenged the Tribunal's decision affirming the revision order under Section 263 of the Act, questioning if the original assessment was prejudicial to the Revenue's interests. The appellant argued that the Assessing Officer had made inquiries and passed a valid assessment order. The appellant cited legal precedents to support the contention that Section 263 can only be invoked when there is a lack of inquiry or verification. The Revenue contended that the original order was erroneous, as the property was treated as stock-in-trade instead of a capital asset. The High Court examined the facts and legal principles, emphasizing that the Commissioner's judgment cannot substitute that of the Assessing Officer unless it is truly erroneous.

Issue 2: Classification of income from property sale
The Tribunal was tasked with determining if the property sale income should be treated as Capital Gains or Business Income. The appellant argued that since no business activity occurred on the property, the income should be considered a realization of investment under Capital Gains. The Revenue asserted that the property was treated as stock-in-trade, justifying the revision under Section 263. The High Court analyzed the Assessing Officer's findings, expenses incurred, and the nature of the property transaction. It concluded that the property sale did not involve development activities, leading to the decision that the income should be taxed as Capital Gains.

Issue 3: Treatment of property as Capital Asset or Stock-in-trade
The question of whether the property should be categorized as a Capital Asset or Stock-in-trade was crucial. The Assessing Officer considered the property as a Capital Asset, leading to the demand for Capital gains tax. The Commissioner disagreed, leading to the revision under Section 263. The High Court examined the expenses incurred by the appellant and the nature of the property transaction. It was established that no development occurred on the property, supporting the view that the property was not held as stock-in-trade but as a Capital Asset. The Court emphasized that both views were plausible, and the Assessing Officer's judgment should prevail.

Issue 4: Validity of expenses incurred in connection with property transfer
The Tribunal examined the expenses incurred by the appellant in connection with the property transfer. The High Court scrutinized the details of the expenses, noting that they were not related to property development but to interest, professional charges, and brokerage. The Court highlighted that the property was purchased with the intent to construct a Tech Park but was sold due to financial constraints, without any development occurring. The Court upheld the Assessing Officer's view that the income should be taxed as Capital Gains, dismissing the Revenue's argument that the property was treated as stock-in-trade.

In conclusion, the High Court allowed the appeal, setting aside the Tribunal's decision and ruling in favor of the assessee on the first and second questions. The Court held that the property sale income should be taxed as Capital Gains, as no development activities occurred on the property, and the expenses incurred were not related to property development.

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