2022 (6) TMI 403 - AT - Income Tax

Revision u/s 263 by CIT - transaction entered into by the assessee along with other two persons - undisclosed investment - Whether the requisite jurisdiction necessary to assume revisional jurisdiction is existing in this case before the PCIT rightfully exercises his revisional power? - HELD THAT - PCIT failed to examine the facts in the right prospective because the transaction in question is not a transaction of purchase of immovable property. As per the development agreement dated 28.08.2015, the assessee along with two other persons namely Mr. Rajendra Rampal and Mr. Bishwanath Sukumar Dey approached the land owner Mr. Mahendra Pratap Singh and Mr. Abhisekh Kumar Singh for developing their property located at Chandernagore, Dist.-Hooghly, land measuring 0.7680 acre while entering into the development agreement of Rs. 50 lakh each was paid as advance by the three developers including the assessee. The said transaction is not a purchase transaction being undertaken by the assessee and other two persons with Mr. Mahendra Pratap Singh and others. Actually the said agreement is a development agreement entered into between the land owner and three developers including the assessee for developing the land and then sharing revenue/gains at the mutually agreed ratio. It is also an undisputed fact that after entering into the development agreement no further development took place and the amount advanced by the assessee as per the development agreement was refunded back in subsequent period. Thus the issue raised in the show cause notice has been examined properly by the Ld. AO after conducting necessary enquiry and has also examined the facts properly their hardly remains any scope for Ld. PCIT to exercise jurisdiction u/s. 263 of the Act. Therefore, since the Ld. AO has made necessary enquiry, applied his mind on the issue, examined the facts properly and has taken a possible view, we cannot agree with the finding of the Ld. PCIT of setting aside the assessment order. Accordingly, the proceedings u/s. 263 of the Act are quashed and the assessment order u/s. 143(3) of the Act is restored. Thus, all the grounds raised by the assessee are allowed.

Summary

Issues Involved:
1. Legitimacy of revisionary proceedings initiated based on audit objections.
2. Correctness of the Pr. CIT's view on the consideration received by the developers.
3. Jurisdiction under Section 263 concerning the development agreement.
4. Applicability of Section 56(2)(vii) to the assessee.
5. Classification of the advance paid to the landlord.
6. Acceptance of the assessee's explanations regarding the development agreement.
7. Overall legality of the revisionary proceedings.

Detailed Analysis:

1. Legitimacy of Revisionary Proceedings Initiated Based on Audit Objections:
The assessee contested that the revisionary proceedings initiated by the Pr. CIT based on audit objections from the Revenue Audit without an initial trigger from the Pr. CIT were unjustified and not in accordance with the law. The Tribunal noted that the assumption of jurisdiction under Section 263 by the Pr. CIT must satisfy the conditions precedent, i.e., the order of the Assessing Officer (AO) must be erroneous and prejudicial to the interests of the Revenue. The Tribunal found that the Pr. CIT failed to establish these twin conditions, thereby invalidating the initiation of revisionary proceedings.

2. Correctness of the Pr. CIT's View on the Consideration Received by the Developers:
The Pr. CIT held the view that the developers received the entire land for a consideration of Rs. 1.50 crores, which was contested by the assessee. The Tribunal examined the development agreement and concluded that the transaction was not a straightforward purchase but a development agreement where the developers were to incur construction expenses and were entitled only to a part of the project. This view by the Pr. CIT was found to be incorrect.

3. Jurisdiction under Section 263 Concerning the Development Agreement:
The assessee argued that the Pr. CIT erred in assuming jurisdiction under Section 263, as there was no purchase or transfer of property to apply Section 56(2)(vii). The Tribunal observed that the development agreement did not result in any transfer of property or possession to the assessee, and no further development work was undertaken during the year. The Tribunal held that the AO had already examined the transaction in detail and found no error, thus negating the Pr. CIT's jurisdiction under Section 263.

4. Applicability of Section 56(2)(vii) to the Assessee:
The Pr. CIT applied Section 56(2)(vii), assuming the assessee received immovable property. The Tribunal found that the assessee did not receive any immovable property, as the transaction was a development agreement. The Tribunal ruled that Section 56(2)(vii) was not applicable, as there was no transfer of property to the assessee.

5. Classification of the Advance Paid to the Landlord:
The Pr. CIT contended that the advance paid to the landlord should be classified as "Advance for Land" and not as "Stock-in-trade." The Tribunal noted that the AO had verified the advance payment and its classification during the assessment proceedings. The Tribunal found that the Pr. CIT's view was unfounded, as the AO had already examined and accepted the classification.

6. Acceptance of the Assessee's Explanations Regarding the Development Agreement:
The Pr. CIT did not accept the assessee's explanations that the development agreement and the amount advanced were disclosed to the AO and were on record. The Tribunal found that the AO had indeed examined these details and found them satisfactory. The Tribunal ruled that the Pr. CIT's rejection of the assessee's explanations was unwarranted.

7. Overall Legality of the Revisionary Proceedings:
The Tribunal held that the revisionary proceedings initiated by the Pr. CIT were not in accordance with the law, as the AO had conducted a thorough examination of the transaction and taken a possible view. The Tribunal quashed the proceedings under Section 263 and restored the assessment order dated 24.12.2018 under Section 143(3).

Conclusion:
The Tribunal allowed the appeal of the assessee, quashing the revisionary proceedings initiated by the Pr. CIT and restoring the original assessment order. The Tribunal emphasized that the AO had conducted a proper enquiry, applied his mind, and taken a possible view, which the Pr. CIT failed to recognize.