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2012 (12) TMI 775 - AT - Income TaxRevisionary powers used by CIT(A) - order of the A.O. was erroneous Capital Gain - Held that - The observations of CIT clearly indicate that he invoked the doctrine of lifting the veil. The doctrine of substance or form is generally applicable to the assessment proceedings and not the revisionary proceedings. Further, the AO, has considered the issue in question, applied his mind and did not invoke the provisions of Section 45(4). In the present case, pertaining to capital gains on leasehold property rights the said transaction has been duly considered by the AO, as is evident from the questionnaire issued and reply submitted by the assessee. Further, the assessee has filed documentary evidence, indicating, the date of transaction, as well as the date of retirement of the said partner. Right in leasehold property in question has already been sold much before the date of retirement & had nothing to do with retirement of partner & do not fall with in the purview of Distribution of assets. It is well settled proposition that, where AO has taken legally permissible view, CIT cannot acquire revisional jurisdiction u/s 263 merely because another view is possible - appeal of assessee is allowed.
Issues:
1. Validity of order passed under section 263 of the Income Tax Act. 2. Invocation of Section 263 and assessment of capital gains on leasehold property rights. 3. Consideration of real transactions and application of Section 45(4) of the Act. 4. Competency of the Commissioner to substitute views already considered by the Assessing Officer. 5. Application of the doctrine of lifting the veil and invoking Section 263 based on change of opinion. 6. Legal permissibility of the view taken by the Assessing Officer and jurisdiction of the Commissioner under Section 263. Issue 1: Validity of order under Section 263 The appeal challenged the order passed by the Commissioner under Section 263 of the Income Tax Act, contending it was illegal and against the facts and laws. The appellant argued that the assessing officer had already considered and accepted the capital gain on rights in leasehold property during the assessment proceedings, making the Commissioner's order invalid. Issue 2: Invocation of Section 263 and assessment of capital gains The Commissioner invoked Section 263 and directed the evaluation of assets of the firm on the retirement of a partner, treating the transaction as distribution of assets under Section 45(4) of the Act. The appellant argued that the Assessing Officer had already examined the issue, and the Commissioner's intervention was not warranted. Issue 3: Real transactions and Section 45(4) application The Commissioner emphasized the need to scrutinize the real transactions and invoked the doctrine of lifting the veil to determine the avoidance of Section 45(4) provisions. The Commissioner's observation was based on the failure of the Assessing Officer to apply Section 45(4), leading to the Commissioner considering the issue on merit under Section 263. Issue 4: Competency of the Commissioner The appellant argued that the Assessing Officer had already addressed the issue, and the Commissioner could not substitute views that were already considered. The appellant relied on legal precedents to support the argument that the Commissioner's intervention was not justified. Issue 5: Doctrine of lifting the veil and change of opinion The Commissioner's decision to invoke Section 263 was based on the doctrine of lifting the veil and the belief that the Assessing Officer had not properly considered the application of Section 45(4). The Commissioner's opinion on change of opinion and the application of relevant sections were central to the dispute. Issue 6: Legal permissibility of Assessing Officer's view The Tribunal considered the submissions and orders of lower authorities, emphasizing that where the Assessing Officer had taken a legally permissible view, the Commissioner could not exercise revisional jurisdiction under Section 263. Legal precedents were cited to support the Tribunal's decision to allow the appeal. This detailed analysis of the judgment addresses the various issues raised in the appeal and provides a comprehensive understanding of the legal complexities involved in the case.
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