2019 (5) TMI 425 - AT - Income Tax

Revision u/s 263 - valuation of capital gain - valuation of property - the bungalow is found in extremely dilapidated condition - cost of acquisition - valuation as on date OR as on 01.04.1981 - property was constructed during Portuguese Regime - finding of the Learned CIT that the cost of property should be taken as Nil for calculation of the long term capital gain - CIT observed that the Registered Valuer report suffers from self contradiction - HELD THAT - The order of the AO could not be termed as erroneous or prejudicial to the interest of the revenue warranting exercise of revisional jurisdictional u/s 263 because the Learned CIT formed a different opinion. The valuer as simply commented upon condition of the property during the course of his verification only. This does not automatically mean that property was under bad and dilapidated condition as on 01.04.1981. However, we find that when two views are possible and that has resulted in loss of the revenue it cannot be treated as erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing officer is unsustainable in law. We find nothing contrary to come to a conclusion that the Learned AO has not made any enquiry in the assessment proceeding. Taking into consideration, the entire aspect of the matter we are of the considered view that the order impugned before us is nothing but a change of opinion and the very basis of such order i.e. the finding of the CIT does not depict the original factual matrix of the matter. At the cost of repetition we say that the valuation of the property was made upon inspection on 31.01.2009. The description of the property was in respect of that relevant point of time and not of the 01.04.1981 of which the valuation was assessed by the registered valuer. Since, the very basis of the finding of the CIT is not proper, we find no merit in the order impugned before us u/s 263 of the Act passed by the Learned CIT. Thus, the same is hereby quashed. The appeal preferred by the assessee is, therefore, allowed.

Summary

Issues Involved:
1. Whether the Assessing Officer's (AO) order was erroneous and prejudicial to the interests of the revenue.
2. Whether the valuation of the property as on 01.04.1981 was correctly assessed.
3. Whether the Commissioner of Income Tax (CIT) was justified in invoking Section 263 of the Income Tax Act, 1961.

Detailed Analysis:

1. Whether the Assessing Officer's (AO) order was erroneous and prejudicial to the interests of the revenue:
The CIT found the AO's order erroneous and prejudicial to the interests of the revenue. The AO had accepted the valuation report of the property submitted by the assessee without proper scrutiny. The CIT noted that the property was in a dilapidated condition as per the valuation report, and thus, the value of the structure should have been considered 'nil'. The CIT issued a show-cause notice under Section 263(1), stating that the AO's failure to make proper inquiries and apply his mind rendered the order erroneous and prejudicial to the revenue.

2. Whether the valuation of the property as on 01.04.1981 was correctly assessed:
The assessee argued that the valuation report dated 30.01.2009 was for the purpose of determining the value of the property as on 01.04.1981. The assessee contended that the valuation was done by a competent valuer approved by the Income Tax Department, and the AO had accepted this valuation during the original assessment. The assessee emphasized that the condition of the property described in the valuation report was as of 30.01.2009 and not 01.04.1981. The Tribunal noted that the AO had considered the valuation report during the original assessment and concluded that the CIT's order was based on a change of opinion rather than any new evidence or error in the original assessment.

3. Whether the Commissioner of Income Tax (CIT) was justified in invoking Section 263 of the Income Tax Act, 1961:
The Tribunal held that the CIT was not justified in invoking Section 263. The Tribunal emphasized that for the CIT to exercise jurisdiction under Section 263, two conditions must be satisfied: the order must be erroneous and prejudicial to the interests of the revenue. The Tribunal found that the AO had adopted one of the permissible views based on the valuation report, and merely because the CIT disagreed with this view, it did not render the AO's order erroneous or prejudicial to the revenue. The Tribunal cited the judgment in PCIT vs. CLP India Pvt. Ltd., which supported the view that if the AO had made inquiries and adopted a permissible view, the CIT could not invoke Section 263 merely because he had a different opinion.

Conclusion:
The Tribunal quashed the CIT's order under Section 263, holding that the AO's original assessment was neither erroneous nor prejudicial to the interests of the revenue. The appeal filed by the assessee (ITA No.1139/Ahd/2014) was allowed, and the related appeal (ITA No.1069/Ahd/2016) was dismissed as infructuous. The Tribunal concluded that the CIT's order was based on a change of opinion and did not reflect the actual condition of the property as of 01.04.1981.