2023 (2) TMI 171 - AT - Income Tax

Revision u/s 263 - Capital gain computation - assessee s share was worked out on the basis of lettable carpet area, while it ought to have been on the basis of total built-up area, valuation ought to have been by the District Valuation Officer (DVO) and not by the Valuation Officer (VO) and assessee s undivided share in land sold was in fact at 23.115 cents out of a total of 30.865 cents - CIT set aside the assessment for consideration of the discrepancies and assessment afresh after referring the valuation to the DVO, and hearing the assessee in the matter/s - HELD THAT - No overlap between the three areas identified in the impugned order on which the revisionary authority finds the assessment as erroneous and prejudicial to the interests of Revenue, and the grievance/s caused to the assessee thereby, and which is therefore the subject matter of the pending appeal by her before the first appellate authority, and toward which we have perused the Grounds even other than Gd. 4 referred to for the purpose before us. Two, even if there is an overlap, inasmuch as no appellate order stands passed u/s.250 of the Act as on the date the proposal u/s. 263 was communicated to the assessee per email, i.e., 28.6.2001, much less the date of the impugned order (31.3.2022), it is the jurisdiction of the appellate authority that would stand excluded to that extent, and not that of the revisionary authority. This is in view of the words extended to such matters as had not been considered and decided in such appeal occurring in Explanation 1(c), so that, clearly, the jurisdiction u/s. 263 gets excluded on the basis of an event that had occurred as on the date the same is sought to be assumed by the revisionary authority. Further still, the said exclusion is not on a global basis, but issue-wise, i.e., qua the matters on which the appellate jurisdiction of the first appellate authority stands since exercised. And which brings us back to our first point, i.e., of there being in fact no overlap of matters raised per the impugned order and being agitated in appeal. Continuing further, the plea that the assessment may not survive in view of the assessee s Gd. No. 4 contesting also the year for which the capital gains stands to be arise and, thus, assessed, before the first appellate authority, is, again, to no moment. The same relates to the land transferred on 04.8.2008, while the capital gains assessed for the current year is in respect of the rights retained by the assessee on 04.8.2008, and transferred on 15.10.2011. Even if for the sake of argument, the same is regarded as applicable to the assessee s rights in her 9.22% undivided share in land, assessment for the current year would survive no longer, i.e., irrespective of the impugned order, or the assessment made pursuant thereto. The assessee has before us, apart from the general Gd.A, warranting no adjudication, and Gd. B qua Explanation 1(c) to s. 263(1), also raised other Grounds, which are on the merits of the observations made by the ld. Pr. CIT. The same are clearly premature as the revisionary authority has not decided the issue/s raised by him on merits, and it is a case of open set aside by him. In fact, as would be apparent from the foregoing, no arguments qua the same were advanced before us. Assessee s appeal is dismissed.

Summary

Issues involved:
1. Revisionary order under section 263 of the Income Tax Act, 1961 regarding the assessee's assessment for assessment year 2012-13.

Detailed Analysis:

Issue 1: Revisionary Order under Section 263
The appeal was against the revisionary order under section 263 of the Income Tax Act, 1961, dated 31.3.2022, concerning the assessee's assessment for the assessment year 2012-13. The revisionary order set aside the assessment dated 28.12.2019 due to discrepancies in the assessment process. The grounds for revision included errors in determining the assessee's share, inappropriate methods for determining fair market value, and discrepancies in the undivided share of land sold. The order directed a fresh assessment after referring the valuation to the District Valuation Officer and hearing the assessee.

Analysis of the Arguments:
The assessee challenged the revisionary order, claiming an excess of jurisdiction by the revisionary authority based on Explanation 1(c) to section 263(1) of the Act. The assessee argued that the impugned assessment was under appeal before the first appellate authority, making the revision for the current year misplaced. The Senior DR highlighted that no appellate order had been passed to plead exclusion on that basis. The Tribunal found the assessee's challenge without merit as there was no overlap between the issues identified in the revisionary order and those under appeal. Additionally, since no appellate order had been passed, the jurisdiction of the appellate authority did not exclude that of the revisionary authority.

Conclusion:
The Tribunal dismissed the assessee's appeal, stating that the challenge was without merit. The assessment for the current year would stand irrespective of the impugned order or the assessment made thereafter. The Tribunal found no reason to interfere and declined the appeal, ultimately dismissing it. The stay petition by the assessee was deemed premature and infructuous due to the dismissal of the appeal.