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TMI Blog2022 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter for examination and adjudication by the AO considering that there has admittedly been no examination/consideration by him in the matter. It is trite law that the order becomes per se erroneous and prejudicial to the interests of the Revenue, liable for revision, in the absence or lack of enquiry, which ought to have been made in the facts and circumstances of the case, i.e., for non-application of mind ( In fact, even on merits, we find no case having been set-up or canvassed before the revisionary authority, for it to be contended, as was before us, that the revisionary authority ought to have under the circumstances decided the matter himself, even as the same would not extend to redoing the assessment himself. As the provisions of Registration and Other Relevant Laws (Amendment) Act, 2001 may also be relevant in the matter. Further still, the property under reference, as a perusal of the sale deed , also read-out during hearing, shows, is a lease , so that there can apparently be no sale , which implies transfer of absolute rights, i.e., on freehold basis. That is, even on merits of the assessee s case before us, the matter has been, in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as satisfactorily explained, accepted the return/s of income. Subsequently, the Pr. CIT, examining the assessment record, found a substantial difference between the stated consideration (Rs. 50 lacs) and the stamp valuation (i.e., Rs. 127.56 lacs). Section 56(2)(vii)(b)(ii) deemed the same as the income of the purchaser, an aspect of the matter which the AO ought to have, in his view, examined, though had failed to. Though the assessee before him claimed that the property was in fact purchased and registered prior to 30/03/2013 upon making full payment, taking possession thereof, in view of the Pr. CIT the provision of Explanation-2(a) to s. 263(1) was clearly attracted as the AO had completely failed to make proper enquiry in the matter. He, accordingly, held as under: 8. As the provisions of section 56(2)(vii)(b)(ii) of the I.T. Act, 1961, was substituted by the finance Act 2013, which came into effect from 01/04/2014, and so also the case was selected on the basis of AIR information that assessee has made investment in property during the FY 2013-14 relevant to AY 2014-15, the Assessing Officer, ought to have examined the issue with regard to applicability of provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Mancharji Vaid [2001] 250 ITR 542 (Guj) (FB). Further, full payment of consideration is not a condition precedent for the transfer of ownership under the Transfer of Property Act, 1982, toward which he would read out sec. 54 of the said Act. The sale is thus complete on 30/3/2013 itself, constituting transfer u/s. 2(47)(i) of the Act. The matter, he would continue, is squarely covered by the decision in Mormasji Mancharji Vaid (supra), which in fact stands relied upon by the Jabalpur Bench of the Tribunal in ITO vs. Rakhi Agrawal (in ITA No. 94/JAB/2018, dated 27/10/2020). He was, however, unable to answer a query by the Bench as to how could the AO be regarded as having verified the source/s of investment which, as per the sale deed, is vide cheques, three of which, aggregating to Rs. 30 lacs, were dated 20/04/2013, while the source of investment, as verified and confirmed by him, also include sources dated 01/01/2014 (for Rs. 10 lacs), and dated 28/05/2013 05/09/2013 (for Rs. 23.33 lacs), in the hands of Vishal Jeswani and Atul Jeswani respectively. The ld. DR would, on the other hand, rely on the impugned order, stating that the revisionary authority had taken a reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3 As regards the revision order, the same cannot be regarded as infirm on account of remission of the matter for examination and adjudication by the AO considering that there has admittedly been no examination/consideration by him in the matter. It is trite law that the order becomes per se erroneous and prejudicial to the interests of the Revenue, liable for revision, in the absence or lack of enquiry, which ought to have been made in the facts and circumstances of the case, i.e., for non-application of mind ( Malabar Industries Co. Ltd. vs. CIT [2000] 243 ITR 83 (SC); Gee Vee Enterprises vs. CIT (Addl.) [1975] 99 ITR 375 (Del), the latter rendered after a review of judicial precedents, including two by the Hon ble Apex Court itself. It is again trite law that once an order is found as liable for revision on that count, it is open for the revisionary authority to carry out the enquiry and arrive at a finding himself or cause the same to be done by the AO, i.e., pass an order, without fetter, as the facts and circumstances of the case justify; his power of revision being vast, case law on which is legion, also plain from the language of the statue. Remission for inquiry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elayed registration by the registering authority, and its legal implications, would also need to be determined. The provisions of the Stamp Act may have a bearing in the matter, i.e., with reference to the Registration Act. Further, the provisions of Registration and Other Relevant Laws (Amendment) Act, 2001 may also be relevant in the matter. Further still, the property under reference, as a perusal of the sale deed , also read-out during hearing, shows, is a lease , so that there can apparently be no sale , which implies transfer of absolute rights, i.e., on freehold basis. That is, even on merits of the assessee s case before us, the matter has been, in the facts and circumstances of the case, rightly remitted by the ld. Pr. CIT to the file of the assessing authority for fresh consideration. Sure, the AO having not considered this aspect of the matter at all, there was no occasion for the assessee to clarify anything thereto, much less qua the date of transfer, which forms the fulcrum of his case/s. It does not, however, lie in the mouth of the assessee, who explained the source of the investment in property purchased during the year , to contend that the date of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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