9911796707
TMI Blog2022 (4) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the issue considered by the Principal CIT for revision of assessment order has been already examined by the Assessing Officer and has taken a view and thus, we are of the considered view that the Principal CIT cannot substitute his view and held that assessment order passed by the Assessing Officer is erroneous and insofar as it is prejudicial to the interests of revenue. According to the Principal CIT, there is difference between sale value shown in registered document, when compared to guideline value of property. If you compare difference arrived at by the Principal CIT, it is less than specified percentage allowed under the Act, in terms of provisions of section 50C(3) and 55A(b)(i) of the Act. Even assuming for a moment, the Assessing Officer has not considered the above issue, but definitely it cannot be said that said issue is prejudicial to the interests of the revenue, because even if, the Assessing Officer has considered the issue the A.O. cannot make any addition, because difference in value shown in sale deed, when compared to guideline value is less than specified percent. Therefore, in our considered view on this issue, the Principal CIT cannot revise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is time barred by 41 days for which necessary petition for condonation of delay along with affidavit explaining reasons for delay has been filed. The AR further submitted that the assessee could not file appeal within the time limit allowed under the Act, mainly due to lock down imposed by the Govt. on account of spread of Covid-19 infections and in view of Hon ble Supreme Court suo motu Writ Petition No.3 of 2020, if the period of delay is covered within the period specified in the order of the Apex Court , then same needs to be condoned in view of specific problem faced by the public on account of Covid-19 pandemic. 3. The learned AR, on the other hand, fairly agreed that delay may be condoned in the interest of justice. 4. Having heard both sides and considered reasons given by the learned AR for the assessee, we find that the Hon ble Supreme Court in suo motu Writ Petition No.3 of 2020, has extended limitation applicable to all proceedings in respect of courts and tribunals across the country on account of spread of Covid-19 infections w.e.f. 15.03.2020, till further orders and said general exemption has been extended from time to time. We further noted that dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 and accepted income returned. The Principal CIT has taken up case for revision proceedings and issued show cause notice dated 10.09.2019 u/s.263 of the Income Tax Act, 1961, and called upon the assessee to explain as to why assessment order passed by the Assessing Officer shall not be revised for the reasons stated in his show cause notice. The Principal CIT has proposed to revise assessment order on the ground that the assessment order passed by the Assessing Officer is erroneous insofar as, it is prejudicial to the interests of revenue on account of non-consideration of difference in sale value shown in registered document, when compared to guideline value fixed by the authorities for stamp duty purpose in computing long term capital gain. The Principal CIT further noted that the assessee has claimed cost of improvement being expenses of fencing, bore well, compound wall and levelling which has not been thoroughly examined by the Assessing Officer. Further, the assessee has adopted fair market value of the property as on 01.04.1981 at ₹ 5,500 per cent, whereas Tamil Nadu registration value was ₹ 2,380/- per cent as on 01.04.2003. These facts have not been examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss than 10%, which is permissible as per provisions of section 50C(3) and thus, even assuming for a moment, the Assessing Officer has not examined the issue, but question needs to be considered is whether any prejudice is caused to the revenue or not. Since, the Assessing Officer cannot make any addition when the difference in property is less than specified percent and thus, it cannot be said that there is prejudice to the interest of the revenue. Therefore, he submitted that assessment order passed by the Assessing Officer cannot be treated as erroneous, insofar as it is prejudicial to the interests of revenue to invoke jurisdiction by the Principal CIT. 9. The learned DR, on the other hand, supporting order of the learned PCIT has filed written submissions on the powers of the Principal CIT u/s.263 of the Act. The relevant contents of written submissions of the Principal CIT are reproduced as under:- 1. By the insertion of Explanation 2 to the section 263 of the Income Tax Act by the Finance Act, 2015 w.e.f. 01.06.2015, the revisionary powers of Pr. CIT/CIT has been enlarged and an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner under section 263 are very wide. The only limitation on his power is that he must have some material which would enable him to form a prima fade opinion that the order passed by the officer was erroneous in so far as it is prejudicial to the interests of the revenue. Once he concludes on the basis of the material that the order of the Assessing Officer was erroneous and prejudicial to the interests of the revenue, the Commissioner is empowered to pass an order as the circumstances of the case may warrant. He may pass an order enhancing the assessment or he may modify the assessment. He is also empowered to cancel the assessment and direct a fresh assessment. The Commissioner is fully competent to adopt any one of the three causes indicated by the said provision. [Para 13] 5. Jurisdictional HC of Madras in the case of M/s. Lakshmi Vilas Bank v JCIT, in TCA No.1370/2008, relied on the decision of the SC in the case of CIT v Amitabh Bachchan (2016) 384 ITR 0200 and held that final order u/s 263 need not be out of the issues raised in the notice as the issue of show cause notice itself is not mandated u/s 263. What is mandatory is that the assessee should have been provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g back to the issues questioned by the Principal CIT. The Principal CIT has questioned sale consideration adopted by the Assessing Officer for computation of long term capital gain. According to the Principal CIT, there is difference between sale value shown in registered document, when compared to guideline value of property. If you compare difference arrived at by the Principal CIT, it is less than specified percentage allowed under the Act, in terms of provisions of section 50C(3) and 55A(b)(i) of the Act. Even assuming for a moment, the Assessing Officer has not considered the above issue, but definitely it cannot be said that said issue is prejudicial to the interests of the revenue, because even if, the Assessing Officer has considered the issue the A.O. cannot make any addition, because difference in value shown in sale deed, when compared to guideline value is less than specified percent. Therefore, in our considered view on this issue, the Principal CIT cannot revise the assessment order. As regards, cost of improvement claimed by the assessee, including expenses incurred on fencing, bore well, leveling of plot and building, it was the case of the PCIT that although, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
