2023 (1) TMI 1090 - HC - Income Tax

Condonation of delay in filling appeal before HC - present appeal filed after a delay of 109 days - only explanation provided for such delay that the delay of few days in filing the appeal is due to the administrative reasons beyond the control of the Appellant - HELD THAT - We are unable to accept that the delay in filing the appeal can be condoned for the aforesaid reasons. It is settled law that each day of delay has to be explained. The appellant has not given sufficient explanation for the delay of 109 days. The fact that the appellant has casually termed the delay of 109 days as a delay of only of few days clearly indicates the lack of seriousness on the part of the Revenue in adhering to timeline stipulated under the Act. The application is accordingly dismissed. Revision u/s 263 - As per CIT provisions of Section 56(2)(vii)(a) would be applicable and the assessee would be liable to pay tax on the difference between the consideration paid for the said shares and their Fair Market Value - HELD THAT - MAT credit entitlement is not a marketable asset, and the question whether such entitlement should be included while computing the fair market value of shares of a company is debatable. More importantly, the learned ITAT found that the learned Commissioner was not justified in assuming jurisdiction on the ground that no enquiries had been conducted by the AO. AO had issued queries regarding investment in unlisted equity shares. The assessee had responded to the questionnaire and submitted various details including the details of the shares purchased; the entities from whom the shares were purchased; copies of the bank accounts evidencing payments of consideration; and, the computation of the book value of the shares amongst other details. AO had applied its mind to the said information and had framed the assessment. ITAT rightly held that this is not a case that no enquiry has been conducted by the AO. Accordingly, the learned ITAT set aside the order dated 31.03.2021, passed by the learned Commissioner. We find that no substantial question of law arises in the present appeal. Maintainability of appeal on low tax effect - As appellant submits that since the Commissioner had set aside the assessment order with a direction to the assessee to make a fresh assessment, the tax effect could not be ascertained and the appeal was not covered under the Board Circulars issued in this regard. The said contention is unpersuasive. The orders passed under Section 263 of the Act are not excluded from the purview of the circular issued by the Central Board of Direct Taxes (CBDT) fixing the monetary limits for filing appeals. In the present case, although the Commissioner had remanded the matter to the AO, he had also broadly quantified the income, which, according to the Commissioner, had been under assessed. A meaningful reading of the order passed by the Commissioner under Section 263 of the Act clearly indicates that the net tax effect of setting aside the said order is far below the monetary limit specified by the CBDT. We dismiss the present appeal on the ground that it is belated; the tax effect is below the monetary limit; and no substantial question of law arises in the present appeal.

Summary

Issues:
1. Condonation of delay in filing appeal under Section 260A of the Income Tax Act, 1961.
2. Assessment under Section 263 of the Income Tax Act, 1961.

Condonation of Delay in Filing Appeal:
The appellant/Revenue sought condonation of a 109-day delay in filing an appeal under Section 260A of the Income Tax Act, 1961. The delay was attributed to "administrative reasons." However, the court emphasized that each day of delay must be explained adequately. The court noted the lack of a satisfactory explanation for the delay and dismissed the application, highlighting the Revenue's lack of seriousness in adhering to statutory timelines.

Assessment under Section 263:
The Income Tax Appellate Tribunal (ITAT) had allowed the respondent's appeal against an order passed by the Commissioner of Income Tax under Section 263 of the Act. The Commissioner invoked Section 263 based on the valuation of shares acquired by the assessee from an unlisted company. The Commissioner contended that the fair market value of the shares was higher than the consideration paid, leading to an under-assessment of income. However, the ITAT found that the Commissioner's assumption of jurisdiction was not justified as the Assessing Officer had conducted inquiries and framed the assessment after considering relevant information provided by the assessee. The ITAT set aside the Commissioner's order, concluding that no substantial question of law arose in the appeal.

Conclusion:
The High Court dismissed the appeal on the grounds of being belated, with the tax effect falling below the monetary limit for filing an appeal. The court emphasized that no substantial question of law arose from the appeal, given the circumstances of the case. The judgment highlighted the importance of adhering to statutory timelines and conducting thorough assessments based on valid jurisdictional grounds.