9911796707
TMI Blog2019 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of income from house property and consideration of source of investment in mutual fund and bank deposit. On both cases income determined by learned assessing officer originally prior to order u/s 263 and assessment order under section 143 (3) of act pursuant to order under section 263 of income tax act is same. There is no change in income computed by assessing officer prior to initiation of 263 proceedings and post initiation of 263 proceedings. Hence, it is apparent that there is no error in order of AO. computation of capital gain by CIT - consideration received on sale of capital gain - appeal before learned CIT(A) - HELD THAT:- Issue of net sale consideration has already been decided by learned assessing officer and adjudicated by learned CIT (A), it is out of purview of provisions of section 263 of income tax act, since matter has already been considered and decided by appellate authority. There is no dispute on indexed cost of acquisition. Therefore, it is apparent that on computation of capital gain learned CIT was not correct in assuming jurisdiction under section 263 of act as matter was considered and decided by appellate authority. Therefore, on this ground also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment under section 143 (3) of income tax act, 1961 was passed on 18/3/2016 wherein learned assessing officer determine total income of assessee at INR 53668531/ . The assessment order was passed after examining claim of deduction of INR 34125000/ under section 54 of income tax act. The capital gain arose for reason that assessee was owner of a plot bearing number 31 ad measuring 500 yd along with structure thereon at Greater Kailash New Delhi which was purchased by her from her brother on 9/8/2007 for a consideration of INR 16960000/-. The assessee entered into a collaboration agreement on 18/4/2012 with builder and gave a vacant possession of property to allow builder to demolish existing structure on plot and construct a building. The entire cost of construction was to be met by builder and builder in turn agreed to pay assessee INR 55000000/ , therefore extra consideration was attributed to that. The assessee has shown total consideration of INR 63082378 against 5,50,00,000 shown as per collaboration agreement. The balance sum of INR 88,23,780/- was required to be explained by assessee. Assessee submitted detail thereof. However AO not convinced by explanation of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 54 of income tax act as well as computation of capital gain has been subject matter of appeal before learned CIT A. Therefore, it was stated that assessment order has since merged in appellate order of learned CIT A is in respect of assessment of capital gain and therefore it cannot be revised under section 263 of income tax act. It was further stated that issue of capital gain arising to assessee under collaboration agreement has already been subject matter of appeal and assessment order having merged with order of learned CIT A , proposed action under section 263 of income tax act is not permissible. The learned CIT further issued a supplementary show cause notice on 12/12/2017 with respect to certain other sources also. The assessee submitted its reply dated 31/1/2018. Based on reply submitted by assessee learned CIT held that assessment order suffers from various defects. Such defects were pointed out in para number 4 of his order. He further held that property, which was transferred by assessee, was not a residential house property but right on a piece of land and hence assessee was not eligible for exemption under section 54 as claimed in return of income. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 263 of income tax act was passed on 28/3/2018 setting aside whole assessment completely with direction to learned assessing officer to frame assessment afresh, after granting due opportunity of being heard to assessee and after examining all issues raised in notices under section 263 of income tax act. Against this order, assessee is aggrieved and therefore it has filed an appeal before us. 5. The learned authorised representative vehemently submitted that order passed by learned CIT A is not sustainable in law for following reasons. a. He submitted that claim of assessee of computation of capital gain under section 54 of income tax as well as computation of chargeability of capital gain has been examined by learned CIT A in appellate proceedings and therefore assessment order has merged with order of learned CIT A. Therefore, it is out of purview of provisions of section 263 of income tax act. He submitted that once a particular issue is subject matter of appeal before learned CIT A Commissioner jurisdiction u/s 263 is ousted. According to him CIT is debarred from revising assessment order with respect to that issue/item/subject matter, even on ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further referred to several issues with regard to Lack of enquiry and inadequate enquiry and submitted that learned CIT has failed to show that how order of learned assessing officer has not been passed after carrying out due enquiry. He further stated that elaborate discussion in issue in assessment order is not mandatory requirement of record to show that assessing officer has applied his mind on issues in question. He also referred to amendment made with effect from 1/6/2015 by insertion of explanation to section 263 of income tax act with respect to various enquiries to be conducted by assessing and whether such inquiries are due, enquiries were not. d. He further submitted a chart on issue of revision proceedings u/s 263 of income tax act. This chart shows that what is issue of revision under section 263 of income tax act and how learned CIT A has considered that issue, how possible view or a possible explanation has been given before learned assessing officer, what are inquiries carried out by learned assessing officer on that aspect. He therefore submitted that even original order passed by learned assessing officer has been passed after making due enquiry and CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich held that order passed by learned assessing officer is prejudicial to interest of revenue and erroneous on computation of capital gain, computation of income from house property and computation of income from other sources. Apparently, in this case original order passed by learned assessing officer has been carried forward by assessee before learned CIT A who has also passed an order and therefore it is required to be examined whether order of learned assessing officer has merged with order of learned CIT A or not, if yes, then to what extent. According to provisions of section 263 of income tax act if order is subject matter of appeal which is subjected to revision under section 263 of income tax act, such revision cannot touch matters which has been considered and decided in such appeal. Therefore, it is apparent that whatever has been considered and decided in appeal by appellate authorities, such matters cannot be subject to revision under section 263 of income tax act. Rationale behind exclusion of such orders from purview of section 263 of act (revisionary proceedings) is that, if CIT (A) decides issue against revenue, revenue has right to challenge it before highe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
