2024 (7) TMI 895 - AT - Income Tax

Revision u/s 263 - payment of on-money - as per CIT assessee has made cash payment for the purchase of shop and the AO has failed to consider the on-money payment - HELD THAT - In the case of the assessee AO has called for various details and after examining details, the AO has passed the order. It has been held in various decisions that no revision u/s 263 can be made where the assessment orders are passed after due verification and after examining the material available as well as after seeking the explanation from the assessee. Since the AO in the instant case has made detailed enquiry in the case of the assessee and in the case of spouse of the assessee. Further, the so-called shop were not purchased by the assessee and in fact were purchased by the wife of the assessee, therefore addition, if any, on account of payment of such on-money can be made only in the hands of the spouse of the assessed and not in the hands of the assessee. No error in the order of the AO so far as the payment of on-money in respect of shop is concerned. It is the settled proposition of law that for invoking jurisdiction u/s. 263 of the Act, the twin conditions, i.e. the order must be erroneous and it must be prejudicial to the interest of the Revenue must be satisfied - Assessee appeal allowed.

Issues Involved:
1. Jurisdiction under Section 263 of the Income Tax Act, 1961.
2. Examination of the issue of payment of on-money.
3. Validity of the assessment order passed by the Assessing Officer.
4. Protective addition of unexplained investment.
5. Examination and verification by the Assessing Officer.

Detailed Analysis:

1. Jurisdiction under Section 263 of the Income Tax Act, 1961:
The primary issue raised by the assessee was the invocation of jurisdiction by the Principal Commissioner of Income Tax (PCIT) under Section 263 of the Income Tax Act, 1961. The assessee challenged the PCIT's order on the grounds that the Assessing Officer (AO) had already made proper examination and enquiry into the matter. The PCIT had set aside the AO's order for further examination of the issue of payment of on-money of Rs. 25 lacs.

2. Examination of the issue of payment of on-money:
The facts of the case revealed that the assessee had made cash payments for the purchase of two flats and shop Nos. 11 and 12 at Rajgruhi Business HUB. The PCIT noted that the AO had made an addition of Rs. 1 crore but had not considered the on-money payment of Rs. 25 lacs. The PCIT argued that the AO's failure to add this amount rendered the order erroneous and prejudicial to the interest of the Revenue. The PCIT issued a show cause notice to the assessee, who contended that all relevant documents and explanations were provided during the scrutiny proceedings.

3. Validity of the assessment order passed by the Assessing Officer:
The assessee's counsel argued that the AO had passed a speaking order after due verification and examination of the material available on record. The counsel referred to the AO's order in the case of the assessee's spouse, where an addition was made based on seized documents related to the purchase of shop Nos. 11, 12, and 13. The counsel cited various judicial decisions to support the argument that no revision under Section 263 can be made if the assessment orders are passed after due verification.

4. Protective addition of unexplained investment:
The assessee also argued that the addition of Rs. 1 crore made by the AO under Section 69B of the Act was on a protective basis and based on presumptions and surmises. The assessee contended that the seized papers did not mention the assessee's name, and the assessee had not purchased the said shop Nos. 11 and 12.

5. Examination and verification by the Assessing Officer:
The Tribunal found that the AO had made detailed enquiries and examinations in the case of the assessee and the spouse. The AO had called for various details and passed the order after examining the material available on record. The Tribunal noted that the shop Nos. 11 and 12 were purchased by the assessee's spouse, and any addition on account of payment of on-money should be made in the hands of the spouse, not the assessee.

The Tribunal concluded that the AO had made detailed enquiries, and the assessment order was not erroneous. It held that the twin conditions for invoking jurisdiction under Section 263—i.e., the order must be erroneous and prejudicial to the interest of the Revenue—were not satisfied. Therefore, the Tribunal set aside the PCIT's order and allowed the appeal filed by the assessee.

Conclusion:
The Tribunal ruled in favor of the assessee, setting aside the PCIT's order and allowing the grounds raised by the assessee. The Tribunal emphasized that the AO had conducted a thorough examination, and the assessment order was neither erroneous nor prejudicial to the interest of the Revenue.

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