9911796707
TMI Blog2024 (9) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion and such a conclusion cannot be termed as erroneous, insofar as prejudicial to the interests of the revenue, because the Pr.CIT does not feel satisfied with the conclusion. At the best, it can be said that in the opinion of the Pr.CIT, the order of the AO is prejudicial to the interests of the revenue, but that by itself, it does not give power to Pr. CIT for suo motu revision, because first requirement is order is erroneous is absent. In the present case also, the Pr.CIT has not recorded any finding, quo effect that there is any prejudice caused to the revenue or the order is erroneous i.e., reassessment order. In our view, any and every erroneous order cannot be subject matter of revision, because, second requirement also is to be fulfilled i.e., error in the order, which has not been pointed out by the Pr.CIT. As decided in Gabriel India Ltd. [ 1993 (4) TMI 55 - BOMBAY HIGH COURT] there must be some franchise material on record to show that tax which was lawfully exigible has not been imposed or that by application of the relevant statue on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. Thus there must be material available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue and stamp duty value which worked out to Rs. 11,16,250/- and the same is to be treated as income of the assessee in view of the provisions of section 56(2)(vii)(b)(ii) of the Act. 3. Brief facts are that the original assessment was completed by the DCIT., Non-Corporate Circle-11, Chennai u/s. 143(3) of the Act vide order dated 30.05.2016 for the relevant assessment year 2014-15. Subsequently, the assessment was reopened by issue of notice u/s. 148 of the Act dated 31.03.2021 and accordingly, reassessment was completed by National Faceless Assessment Centre., (NFAC) Delhi u/s. 147 r.w.s 144 r.w.s 144B of the Act vide order dated 26.03.2022. Subsequently, the Principal CIT issued show-cause notice for revising the reassessment order u/s. 263 of the Act and show-cause notice dated 05.03.2024 was issued. The Pr.CIT has raised the following three issues:- 1. You have purchased and sold lands during the financial year 2013- 14. You have drawn trading account treating the land as opening and closing stock bearing the claim of development expense. The sale value of the land was adopted a per document value instead of stamp duty value. The difference between the stamp duty value and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43CA of the IT Act, 1961 2. Correct consideration for purchase of lands during A.Y. 2014-15 to be ascertained for the applicability of the provisions of Sec. 56(2)(vii)(b)(ii) of the IT Act, 1961 and therefore, submitted that the issue has already been examined. It is a fact that the assessment was completed u/s. 147 r.w.s. 144 r.w.s. 144(8), accepting the returned income because the assessee has never furnished any details or any evidences with respect to the details called for vide notice u/s. 143(2) dt. 26.08.2021. The primary onus lies on the assessee to discharge the query raised by the AO by furnishing documentary evidences. The assessee failed to do so and therefore, it cannot be regarded as the issue has been considered by the Assessing Officer. 5.3 The relied judgment of the jurisdictional, High Court and the Hon'ble Supreme Court verdict is not applicable to the facts available in this case because the issue has never been examined. The AO has not disposed his examination/enquiry as how the provision of section 43CA/56(2)(vii)(b)(ii) has been fulfilled by the assessee. Here it is pertinent to mention that the case of the assessee was originally selected for limited sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough notice issued u/s. 148 of the Act and reasons recorded vide order dated 26.11.2021 for reopening of assessment, wherein two issues were brought within the purview of reopening i.e., the assessee sold lands during the financial year 2013-14 and treating the land as opening and closing stock. The Assessing Officer for the reason to believe noted that sale value of the land adopted and the document i.e., sale deed registered and consideration noted in the document, there is difference of Rs. 83.70 Lacs, which escaped assessment in term of provisions of section 43CA of the Act. The second aspect on which reopening was done, that the assessee had acquired many properties and there was variation on document value i.e., stamp duty value and consideration recorded in sale feed for a sum Rs. 11,16,250/- and this income has escaped assessment in term of the provisions of section 56(2)(vii)(b)(ii) of the Act. These two items are subject matter of reasons recorded and the Assessing Officer has passed reassessment order u/s. 147 r.w.s. 144 r.w.s. 144B of the Act vide order dated 26.03.2023 and accepted the returned income and the relevant reassessment order reads as under:- The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee hence requested for quashing of the revision order passed by Pr.CIT. 6. The second argument or second facet of the issue argued by the learned counsel for the assessee was that issues under revision are on simpliciter valuation of stamp duty and simpliciter valuation done on the basis of guideline value adopted on the basis of stamp duty valuation is just an estimate and that cannot be a subject matter of revision u/s. 263 of the Act, because this issue has been settled by the Hon ble Madras High Court in the case of CIT Vs. Smt. Padmavathi 120 taxmann.com 187. 7. The third facet of argument made by the learned counsel for the assessee is that even, the Pr.CIT in his order has not carried out basic exercise that original assessment or reassessment order is erroneous, insofar as prejudicial to the interests of revenue as the twin conditions must be satisfied before the Pr.CIT can exercise the power u/s. 263 of the Act. But, either of the condition is absent in the facts and circumstances of the case and hence, the Pr.CIT has wrongly assumed his jurisdiction u/s. 263 of the Act, by setting aside the reassessment order in the revision proceedings. 8. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as formed an opinion on these two issues during reassessment proceedings. We have gone through the facts and noted that while making assessment examining accounts, make necessary enquires applies his mind to the facts and circumstances of the case and determined the income offered by accepting accounts or by making some additions by himself or no addition. The Pr.CIT, on perusal of assessment records may be of the opinion that there is difference in documentary transaction i.e., consideration recorded in sale deed and guideline value and value adopted by the stamp duty authorities that he would have to estimate income at figure higher than the one determined by the Assessing Officer. That would not vest the by Pr.CIT with power to re-examine the accounts and re-determine the income at higher figure. It is because, the AO has exercised his quasi-judicial power vested in him, in accordance with law and arrived at a conclusion and such a conclusion cannot be termed as erroneous, insofar as prejudicial to the interests of the revenue, because the Pr.CIT does not feel satisfied with the conclusion. At the best, it can be said that in the opinion of the Pr.CIT, the order of the AO is pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration as per sale deed and the guideline value fixed by Stamp Valuation Authority and merely because guideline value was higher than the sale consideration shown in the sale deed, it cannot be sole reason for holding that the assessment is erroneous and prejudicial to the interest of Revenue. Hon ble Madras High Court in para 16 held as under:- 16. The only reason for setting aside the scrutiny assessment was on the ground that the guide line value of the property, at the relevant time, was higher than the sale Consideration reflected in the registered document. The question would be as to what is the effect of the guideline value fixed by the State Government. There are long line of decisions of the Hon'ble Supreme Court holding that guideline value is only an indicator and the same is fixed by the State Government for the purposes of calculating stamp duty on a deal of conveyance. Therefore, merely because the guideline was higher than the sale consideration shown in the deed of conveyance, cannot be the sole reason for holding that the assessment is erroneous and prejudicial to the interest of revenue. 7.3 In view of the above, in the present case before us, the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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