DHANA-SHREE DEVELOPERS,MUMBAI vs. PRINCIPLE CIT -27, MUMBAI, MUMBAI

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ITA 1036/MUM/2022Status: DisposedITAT Mumbai13 October 2022AY 2015-164 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the show cause notice issued by the PCIT was not complied with by the assessee, and the impugned order was passed in the absence of submissions. To ensure natural justice, the Tribunal set aside the PCIT's order and restored the issues for fresh examination after providing the assessee an adequate opportunity of being heard.

What were the facts?

The assessee filed an appeal against an order passed by the Principal Commissioner of Income Tax (PCIT) under Section 263 of the Income Tax Act. The PCIT had initiated revision proceedings, and the assessee contended that the PCIT erred in invoking Section 263 based on a change of opinion without pointing out any error in the Assessing Officer's order.

What were the issues?

Whether the PCIT correctly invoked Section 263 based on a change of opinion, and whether the assessee was provided with adequate opportunity of being heard.

Which sections of the Income-tax Act were involved?

Section 263,Section 147,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “D” BENCH, MUMBAI

Before: SHRI S. RIFAUR RAHMAN, ACCOUNTNAT MEMBER & SHRI SANDEEP SINGH KARHAIL

For Appellant: Shri Bhupendra Shah
For Respondent: Shri T. Shankar

The present appeal has been filed by the assessee challenging the impugned order dated 26/03/2021 passed under section 263 of the Income Tax Act, 1961 (‘the Act’) by learned Principal Commissioner of Income Tax, Mumbai–27 (‘learned PCIT’), for assessment year 2015–16.

2. In this appeal, assessee has raised following grounds:

“In the facts of the case and in Law, the learned PCIT erred in invoking Section 263 to the case of the Appellant only by way of change of opinion, without

Dhana–Shree Developers ITA No.1036/Mum./2022 pointing out any error in the order of the A.O. and also by disregarding detailed submissions made to him from time to time.

2.

In the facts of the case and in Law, the Show Cause Notice & or order u/s 263 alleging errors and prejudice, itself is erroneous on many counts as follows. a. In the facts of the case and in Law, the learned PCIT erred in invoking the provision of sec. 263 merely because he wants to take a view different from the one taken by the Assessing Officer and thereby changing the opinion of the Assessing Officer by his opinion. b. In the facts of the case and in Law, the learned PCIT erred in holding that Assessing Officer failed to verify the fact that there is difference between the stamp duty value and agreement value of the flats sold. c. In the facts of the case and in Law, the learned PCIT erred in passing the order u/s 263 by disregarding the fact no notice of hearing u/s 263 was served to the Appellant. d. In the facts of the case and in Law, the learned PCIT erred in passing the order u/s 263 by disregarding the fact the same was not served on the Appellant and not appearing on website as on today. [B] Relief Prayed: The appellant therefore prays as follows, 1. To quash the order u/s 263 because PCIT had no proper jurisdiction to invoke provisions of revision and merely a change of opinion. [C] General: - The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. This appeal is filed in time and the same may be allowed in full. A Detailed paper book along with case laws will be submitted at the time of hearing.”

3.

The only grievance of the assessee is against revision order passed by learned PCIT under section 263 of the Act.

4.

During the course of hearing, learned Authorised Representative (‘learned AR’) submitted that all the details were furnished by the assessee during the course of reassessment proceedings under section 147 of the Act.

Dhana–Shree Developers ITA No.1036/Mum./2022 The learned AR further submitted that after consideration of the details filed by the assessee, the Assessing Officer passed order dated 18/12/2018, under section 143(3) r/w section 147 of the Act accepting the returned income. Accordingly, the assessment order is not erroneous and impugned revision proceedings were initiated to take a different view of the matter, without considering the aforesaid aspect.

5.

From the perusal of impugned order passed under section 263 of the Act, we find that show cause notice dated 11/03/2021 under section 263 of the Act was issued to the assessee and details/explanation was sought. However, the said notice was not complied by the assessee and learned PCIT proceeded to pass the impugned order under section 263 of the Act in absence of any submission of assessee. During the course of hearing, it has also been submitted that neither the show cause notice nor the impugned order passed under section 263 of the Act was received by the assessee. It has further been submitted that only after the Assessing Officer handed over the physical copy of the impugned order to the assessee, the assessee filed the present appeal.

6.

On the other hand, learned Departmental Representative vehemently relied upon the impugned order.

7.

Having heard the submissions of both sides and perused the material available on record, we are of the considered view that in the interest of natural justice, assessee should be provided with one more opportunity to present its case before the learned PCIT. Accordingly, we set aside the impugned order passed by the learned PCIT and restore all the issues to the Page | 3

Dhana–Shree Developers ITA No.1036/Mum./2022 file of learned PCIT for examining them afresh after affording adequate opportunity of being heard to the assessee.

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