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2023 (8) TMI 388 - HC - Income TaxRevision u/s 263 by CIT - scope of revision proceedings - ITAT came to a finding that the Principal CIT could not have invoked jurisdiction u/s 263 as AO has taken a possible view in the matter and there is nothing to indicate that the AO has applied the provisions on an incorrect way - HELD THAT - Since the view taken by the Assessing Officer is a possible view, the Principal CIT has assumed jurisdiction u/s 263 of the Act without properly complying with the mandate of Section 263 - ITAT held that the Principal CIT has failed to show that the Assessment Order was erroneous, causing prejudice to the Revenue. This finding of the ITAT that the Principal CIT could not have exercised its jurisdiction under Section 263 of the Act has not been even challenged. Since that has not been challenged, we do not think it permissible to go into the merits of the case - No substantial questions of law arises.
Issues Involved:
1. Interpretation of u/s 45(2) of the Income Tax Act, 1961 regarding retention of saleable area by a developer. 2. Consideration towards transfer of stock in trade between developer and assessee. 3. Relevance of retention of saleable area and entitlement share in property in determining tax liability. 4. Impact of development agreement on transfer of stock in trade. Interpretation of u/s 45(2) of the Income Tax Act, 1961: The Respondent-Assessee appealed against the revision order passed by the Principal Commissioner of Income Tax-12, Mumbai u/s 263 of the Act for AY 2011-12. The Principal CIT revised the Assessment Order passed by the Assessing Officer u/s 143(3) of the Act. The ITAT held that the Principal CIT could not invoke jurisdiction under u/s 263 of the Act as the Assessing Officer's view was a possible one, not unsustainable in law. The ITAT referred to the judgments in Grasim Industries Ltd. v/s. CIT and Gabriel India Ltd. to establish the criteria for an order to be considered erroneous and prejudicial to the revenue. Since the Principal CIT failed to demonstrate that the Assessment Order was erroneous, the ITAT concluded that no substantial questions of law arose. Consideration towards transfer of stock in trade: The Assessee, engaged in various businesses, including real estate development, challenged the revision order of the Principal CIT which deemed the Assessing Officer's order as erroneous and prejudicial to the revenue. The ITAT found that the Assessing Officer's decision was a possible view and not unsustainable in law, hence the Principal CIT did not have jurisdiction under u/s 263 of the Act. The ITAT emphasized that for an order to be considered erroneous, it must be unsustainable in law, as established in previous judgments. As the Principal CIT failed to prove the Assessment Order was erroneous, the ITAT dismissed the appeal, stating no substantial questions of law arose. Relevance of retention of saleable area and entitlement share in property: The Assessee's assessment for AY 2011-12 was revised by the Principal CIT under u/s 263 of the Act, which was challenged by the Assessee. The ITAT held that the Principal CIT lacked jurisdiction under u/s 263 as the Assessing Officer's view was a possible one and not unsustainable in law. Referring to precedents, the ITAT emphasized the need for an order to be clearly erroneous and prejudicial to the revenue for revision under u/s 263. Since the Principal CIT failed to establish the Assessment Order as erroneous, the ITAT dismissed the appeal, finding no substantial questions of law. Impact of development agreement on transfer of stock in trade: The Assessee, involved in multiple businesses including real estate development, contested the revision order by the Principal CIT under u/s 263 of the Act for AY 2011-12. The ITAT held that the Principal CIT did not have jurisdiction to revise the Assessment Order as the Assessing Officer's view was a possible one and not unsustainable in law. Citing legal precedents, the ITAT highlighted the criteria for an order to be considered erroneous and prejudicial to the revenue. As the Principal CIT failed to demonstrate the Assessment Order was erroneous, the ITAT dismissed the appeal, stating no substantial questions of law arose.
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