2014 (11) TMI 212 - AT - Income Tax

Jurisdiction of CIT u/s 263 Validity of assessment order passed u/s 153A r.w. s 143(3) Held that - CIT(Appeals) has failed to arrive at a firm conclusion as to how the assessment orders are erroneous and prejudicial to the interest of the revenue - the orders u/s 263 are not sustainable on this fold of submissions also - it cannot be segregated in two different proceedings i.e. partly before the Learned CIT(A) and partly before the Commissioner u/s 263, the apprehension of revenue is concerned that 35% amount of the unrecorded sales has not been added by the AO, it will not travel to the Learned CIT(A) is concerned, the CIT(A) has powers co-terminus with that of AO and while evaluating the evidence demonstrating the appropriate amount of unaccounted sales, if any, to be considered in the hands of the assessee, would authorize him to consider the total amount and in that situation Learned CIT(Appeals) has jurisdiction to issue notice for enhancement - The observations made while considering the appeals of assessee u/s 263 for issuing notice for enhancement will not be considered as expression of any opinion on the merits of the issues - all the orders passed u/s 263 of the Act is to be set aside Decided in favour of assessee.

Summary

Issues Involved:

1. Legality and jurisdiction of the notice and order under Section 263 of the Income Tax Act, 1961.
2. Error and prejudice to the interest of Revenue in the assessment order under Section 153A r.w.s. 143(3).
3. Validity of the rebate of 35% on account of negotiation in property deals.
4. Adequacy of opportunity provided to the appellant.
5. Application of principles of natural justice.

Detailed Analysis:

1. Legality and Jurisdiction of Notice and Order under Section 263:

The appellant contended that the notice issued under Section 263 of the Income Tax Act, 1961, and the subsequent order were illegal, bad in law, and without jurisdiction. The appellant argued that the notice did not demonstrate any error committed by the Assessing Officer (AO) in passing the assessment order under Section 153A r.w.s. 143(3). Therefore, the jurisdiction assumed by the CIT under Section 263 was illegal and liable to be quashed. The Tribunal, after considering the facts and circumstances, held that the action taken by the CIT under Section 263 was not sustainable as it failed to establish a firm finding that the assessment order was erroneous and prejudicial to the interest of Revenue.

2. Error and Prejudice to the Interest of Revenue:

The CIT argued that the AO's order was erroneous and prejudicial to the interest of Revenue as it allowed a rebate of 35% on unrecorded expenditure without any basis or supporting documents. The CIT contended that such expenditure should not have been allowed as a deduction. However, the Tribunal noted that the Delhi "B" Bench of the Tribunal in a similar case (M/s R.B. Enterprises) had quashed the order under Section 263, stating that the AO had considered the arguments of the assessee and there was a possibility of negotiations in the final settlement of rates. The Tribunal held that the CIT failed to arrive at a firm conclusion on how the assessment orders were erroneous and prejudicial to the interest of Revenue.

3. Validity of the Rebate of 35% on Account of Negotiation in Property Deals:

The appellant argued that the AO had taken a possible view after considering all aspects and necessary inquiries/investigations relating to the issues referred to in the CIT's order under Section 263. The Tribunal observed that the AO had estimated the unaccounted sales on the basis of seized material and granted a rebate of 35% on the total amount calculated. The Tribunal held that this was an integrated issue, and the CIT could not segregate it into two different proceedings. The Tribunal quashed the order under Section 263, consistent with the view taken in the case of M/s R.B. Enterprises.

4. Adequacy of Opportunity Provided to the Appellant:

The appellant contended that the CIT did not provide proper and adequate opportunity to place material on record, and the order passed was against the principle of natural justice. The Tribunal noted that the CIT had failed to confront the reports mentioned in the show cause notice and the order under Section 263, despite the appellant's request. The Tribunal held that the CIT's order was without application of mind and liable to be quashed.

5. Application of Principles of Natural Justice:

The appellant argued that the CIT's observations were based on surmises and conjectures and did not afford any legal justification to the findings given. The Tribunal observed that the CIT had failed to record a firm finding that the assessment order was erroneous and prejudicial to the interest of Revenue. The Tribunal emphasized that the CIT must conduct necessary inquiry and verification before passing an order under Section 263. The Tribunal held that the CIT's order was not sustainable as it did not adhere to the principles of natural justice.

Conclusion:

The Tribunal quashed the orders passed under Section 263 of the Income Tax Act, 1961, and allowed the appeals of the assessee. The Tribunal emphasized that the CIT had failed to establish that the assessment orders were erroneous and prejudicial to the interest of Revenue. The Tribunal also noted that the CIT did not provide adequate opportunity to the appellant and did not adhere to the principles of natural justice. The Tribunal's decision was consistent with the view taken in the case of M/s R.B. Enterprises.