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2022 (11) TMI 359 - AT - Income TaxRevision u/s 263 by CIT - Capital gain computation - assessee furnished documentary evidences of all such expenses except documentary evidences of indexed cost of construction expenditure on account of RIICO norms for which the AO issued notice u/s 142(1) demanding the documentary evidences for the aforesaid expenses - HELD THAT - Section 50 would not apply in such case. Even the ld. AR of the assessee demonstrated us that while calculating the effect of the depreciation claimed for one year is already given and the same is considered by the AO by taking a plausible view. Thus, it is found that the AO has rightly allowed the claim of the assessee and there is no infirmity in his order. As regards the capitalization of interest cost, it is noted that borrowing from SBBJ was duly reflected in the balance sheet as on 31-03-2002 as Loan (SBBJ) - The loan was taken in the name of partner but it was availed by the firm and duly appearing the in the books of the firm this fact is also not disputed by the revenue. The bank statement was furnished by the assessee and considered by the AO while passing the order and the ld. PCIT is finding fault from the same is taking a different view on the matter for which the AO has already applied his mind. As also notable that SBBJ had merged with SBI at the time when the assessee took the copy of the bank statement of earlier period. All these transactions are duly recorded in the audited books of accounts and has duly submitted in the assessment proceedings and the same is duly considered by the AO thought the specific comments does not hold the order as prejudicial to the interest of revenue. Thus, accepting the same has not resulted into any error on the part of the AO as it is a visible document already placed on record. Thus, there is no infirmity in the order of the AO. As regards the shop under construction, it is noted that the same was constructed in F.Y. 2000-01 and the opening balance as on 01- 04-1981 as per ledger account and the same was on account of software issue of tally software which the AO has not objected when the same is correctly claimed from the year when the construction is made instead of 01.04.1981. This fact in fact in the interest of revenue and correctly observed even by the PCIT in his order. It is also noted from the available records that this fact of construction falling in F.Y 2000-01 was conveyed by the assessee to the AO vide submission dated 18-08-2018 before him - Thus, it is found that the indexation was rightly claimed and allowed by the AO after proper satisfaction and we find no infirmity in his assessment order on the issue in question. Taking into consideration all the facts and points raised by the ld. Pr. CIT, Jaipur-1, it is found that the assessee complied with the enquiries made by the AO by filing the required details. This is not a case where the AO has not made any enquiry. We also find that in the present case the capital gain offered by the assessee is almost 95.36 % of the total sale consideration and has offered the substantial amount of capital gain and the deduction claimed is less than 5 % only and the issues raised in proceedings u/s 263 of the Act were already considered and examined by the AO. As also notable that initiation of proceedings u/s 263 of the Act amounts to second scrutiny/ investigation of the facts of the case and is mere suspicion on the plausible view taken by the AO, without any material on the record to show that assessment order passed by the AO was erroneous, the proceedings u/s 263 of the Act are not valid as held in the case of CIT vs. Trustees Anupam Charitable Trust 1986 (9) TMI 26 - RAJASTHAN HIGH COURT , CIT vs. Godawari Sugar Mills Ltd. 1992 (11) TMI 35 - BOMBAY HIGH COURT and CIT vs. Shakti Charities 2000 (2) TMI 75 - MADRAS HIGH COURT The order passed by the AO was neither erroneous nor prejudicial to the interest of the Revenue. The AO adopted the plausible view and after considering the evidence submitted before him, in such a situation the invoking of provisions of Section 263 by the ld. Pr.CIT-1 is only to carry out fishing enquiries with objective of substituting his views in place of AO s view, which is not permissible in law as held by ITAT, Mumbai Bench in the case of Narayan Tatu Rane 2016 (5) TMI 1162 - ITAT MUMBAI Considering all these ratios of the judgement and respectfully following the judgement of Hon ble Jurisdictional High Court in the case of Commissioner of Income Tax, Vs Ganpat Ram Bishnoi where in the court has held that jurisdiction u/s. 263 cannot be invoked for making short enquires or to go into the process of assessment again and again merely on the basis of that more enquiry ought to have been conducted to find something more. In this case we have seen that the out of 100 % sales consideration 95.36 % is offered as capital gain and the claim of the assessee is less than 5 % of the total consideration in this case, thus, what more AO can find fault when he has already disallowed the cost which in his opinion is not supported and thus AO has already verified the issues which the PCIT is pointing out. Thus, in view of the above deliberations we do not concur with the findings of the ld. Pr.CIT and thus the order of the AO is restored by allowing the appeal of the assessee.
Issues Involved:
1. Exercise of revisionary powers under Section 263 of the Income Tax Act by the Principal Commissioner of Income Tax (PCIT). 2. Determination of whether the assessment order passed under Section 143(3) was erroneous and prejudicial to the interest of the Revenue. Issue-wise Detailed Analysis: 1. Exercise of Revisionary Powers under Section 263: The assessee challenged the revisionary powers exercised by the PCIT under Section 263, arguing that the order passed by the PCIT was illegal, unjustified, arbitrary, and against the facts of the case. The PCIT had set aside the assessment order passed under Section 143(3) dated 18-10-2018, claiming it was erroneous and prejudicial to the interest of the Revenue. The assessee sought relief by quashing the PCIT's order. 2. Determination of Whether the Assessment Order was Erroneous and Prejudicial to Revenue: The PCIT issued a show cause notice under Section 263, identifying several points of contention: - Fair Market Value (FMV) of land as on 01.04.1981. - Indexation of the book value of the building. - Interest forming part of the cost of the building. - Indexation of the shop under construction. The assessee responded to the show cause notice, arguing that the assessment order was based on exhaustive inquiries and that the AO had duly considered all relevant evidence. The PCIT, however, held that the AO had not properly verified these aspects, rendering the assessment order erroneous and prejudicial to the interest of the Revenue. Condonation of Delay: The appeal was delayed by 289 days, which the assessee attributed to the COVID-19 pandemic. The delay was condoned based on the Supreme Court's order extending the limitation period due to the pandemic. Assessment Proceedings: The AO had conducted a detailed scrutiny of the assessee's return, focusing on capital gains and interest income. The AO disallowed certain expenses due to lack of documentary evidence but accepted other claims based on the evidence provided. PCIT's Findings: The PCIT found that the AO had not adequately verified the FMV of the land, the indexation of the building's book value, the interest costs, and the indexation of the shop under construction. The PCIT argued that the AO's order lacked proper inquiry and application of mind. Assessee's Defense: The assessee contended that: - The FMV of the land was reasonable and supported by evidence. - The indexation of the building was correctly applied from 1981-82. - The interest cost was capitalized and reflected in the balance sheet. - The shop under construction's indexation was correctly claimed from FY 2000-01. The assessee argued that the AO had made a plausible judgment based on the evidence provided and that the PCIT's intervention was unwarranted. Tribunal's Decision: The ITAT found that the AO had conducted a thorough inquiry and that the assessment order was neither erroneous nor prejudicial to the interest of the Revenue. The Tribunal noted that the AO had taken a plausible view based on the evidence, and the PCIT's revisionary powers under Section 263 were not justified. The appeal of the assessee was allowed, and the assessment order was restored. Conclusion: The Tribunal concluded that the AO had made a reasonable judgment based on the evidence, and the PCIT's order under Section 263 was set aside. The appeal of the assessee was allowed, and the original assessment order was restored.
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