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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
` IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No. 361/CTK/2014 Assessment Year : 2009-2010
Cuttack Development Vs. CIT, Cuttack Authority, Arunodaya Market, Cuttack PAN/GIR No.AACHC 0247 F (Appellant) .. ( Respondent)
Assessee by : Shri B.K.Mohapatra AR Revenue by : Shri Piyush Kolhe, CIT DR
Date of Hearing : 28/02/ 2018 Date of Pronouncement : 5 /03/ 2018
O R D E R Per Pavan Kumar Gadale, JM This is an appeal filed by the assessee against the order of the CIT,
Cuttack u/s.263 of the Income Tax Act dated 11.3.2014 for the
assessment year 2009-2010.
Although various grounds of appeal have been raised by the
assessee in its grounds of appeal, but the only issue required to be
adjudicated before us is as to whether the CIT is justified in assuming
jurisdiction u/s.263 of the Act setting aside the order of the assessment
under section 143(3) and directing the Assessing Officer to redo the
assessment.
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The facts in brief are that the assessee is a local body authority
assessed in the status of artificial juridical person. For the assessment
year under consideration, the return of income was filed on 30.9.2009
disclosing total income of Rs.Nil after setting off of the brought forward
losses of earlier years. The Assessing Officer completed the assessment
u/s.143(3) of the Act on 30.1.2011 determining the total income at Rs.
Nil after setting off of brought forward losses, inter alia, disallowing
Rs.40,482/- towards deduction of FBT.
The Commissioner of Income Tax, on verification of records of the
assessee, found that the assessee had debited Rs.3,50,00,000/- in the
profit and loss account towards land premium. However, in the profit and
loss account, neither any sale proceed of land was credited nor the
premium value of the land was disclosed as the closing stock. The CIT
was of the opinion that the land premium paid and debited to profit and
loss account is not a revenue expenditure but a capital expenditure and
hence the same is not admissible for deduction u/s.37(1) of the Act. He,
therefore, opined that the Assessing Officer has not examined the above
aspects while completing the assessment. Hence, he considered the
assessment order u/s.143(3) is erroneous insofar as prejudicial to the
interests of the revenue. Accordingly, a show cause notice u/s.263 of the
Act was issued to the assessee directing to explain as to why the
assessment order dated 30.11.2011 should not be cancelled.
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The assessee submitted that the land premium of Rs.3,50,00,000/-
was paid to the Government of Odisha towards enhanced cost of land for
the lands already acquired in earlier years and the lands were already
sold to different persons. Therefore, no lands were left to be shown as
closing stock.
The CIT considered the submissions of the assessee and noted that
it has been judicially settled that premium paid for land is capital
expenditure and periodical rentals paid is revenue expenditure and
referred to the judicial decisions in the impugned order. He observed
that the Assessing Officer has not examined this aspect while framing the
assessment order u/s.143(3) of the Act. Therefore, in the opinion of the
CIT, the assessment order is erroneous in so far as it is prejudicial to the
interests of the Revenue. Hence, he in exercise of his power conferred
u/s.263 of the Act, set aside the assessment order and restored the same
to the file of the Assessing Officer with a direction to redo the assessment
after affording reasonable opportunity of hearing to the assessee after
examining the following issues:
“1. When and what is the extent of land acquired by the assessee from Government of Odisha with reference to which land premium of Rs.3,50,00,000/- has been demanded and the rate at which said land was acquired. 2. When and to whom such lands were sold/distributed. 3. When the demand notice for payment of land premium was received from the Government of Odisha.
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If land premium payments are considered capital expenditure whether the receipts on account of transfer fees and stamp duty would constitute capital receipt.
Aggrieved by the order of the CIT, the assessee has filed appeal
before the Tribunal.
Before us, ld A.R. submitted that the assessment was completed
u/s.143(3) of the Act and the Assessing Officer called for the books of
account and been verified and examined. The Ld A.R. filed the
assessment order u/s.143(3) of the Act and submitted that the Assessing
Officer made disallowance and, therefore, the CIT has erred in revising
the order though it is not prejudicial and erroneous to the interests of the
revenue. Ld A.R. explained that Rs.3,50,00,000/- was paid to
Government of Odisha towards lands premium which were sold in earlier
years, which is fully allowable expenditure u/s.37 of the Act as the land is
not a fixed asset.
Contra, ld D.R. relied on the order of the CIT and explained that in
the assessment proceedings, the Assessing Officer has not discussed
regarding land premium paid to Odisha Government and, therefore, the
CIT is justified in setting aside the assessment order by invoking his
power conferred u/s.263 of the Act.
We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. The sole disputed issue is
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with respect to setting aside the assessment order by the CIT in respect
of land premium of Rs.3.,50,00,000/-. On perusal of assessment order
u/s.143(3) of the Act dated 30.11.2011, we find that no discussion was
made by the Assessing Officer regarding land premium paid of
Rs.3,50,00,000/- to Government of Odisha. No enquiries were also made
by the Assessing Officer. Prima facie, it appears that the CIT found that
the order passed u/s.143(3) of the Act is without making enquiries on this
particular disputed issue, which is raised in the revision proceedings. Ld
A.R. submitted that the order of the Assessing Officer is not erroneous
and prejudicial to the interests of the revenue and only demonstrated
before us that Rs.3,50,00,000/- was paid to Government of Odisha
towards land premium which were sold in earlier years, which is fully
allowable expenditure u/s.37 of the Act as the land is not a fixed asset
but stock in trade. We are of the considered opinion that the explanations
submitted before us are to be verified by the Assessing Officer and the
CIT having dealt on this issue and has remitted to the file of the
Assessing Officer for fresh adjudication as the facts are not emanating
out of assessment order. We rely on various judicial pronouncements,
wherein, it was held that the Commissioner can regard the order as
erroneous on the ground that in the circumstances of the case the
Income-tax Officer should have made further inquiries before accepting
the statements made by the assessee in his return. It was also held that
the Income-tax Officer is not only an adjudicator but also an investigator.
It is his duty to ascertain the truth of the facts stated in the return of
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income. When the circumstances of the case are such so as to provoke an
enquiry, it is his duty to make proper enquiry. Failure to make enquiry in
such circumstances would make the assessment order erroneous. The
Hon’ble Apex Court in the case of Smt. Tara Devi Aggarwal vs. CIT, 88
ITR 323 (SC), has held that the CIT may consider an order of the AO to
be erroneous not only it contains some apparent error of reasoning or of
law or of fact on the face of it but also because it is a stereo typed order
which simply accepts what the assessee has stated in his return and fails
to make enquiries which are called for in the circumstances of the case.
Recently, the Hon’ble Apex Court in the case of Denial Merchants Pvt Ltd.
vs ITO in Special Leave (C) No.(s) 23976 /2017 and others order dated
29.11.2017 has upheld the judgement of Hon’ble Calcutta High Court
passed on 10.4.2017 in G.A. No.599/2016, dismissing the special leave
petition observing that the CIT after setting aside the order of the
Assessing Officer, simply directed the Assessing Officer to carry thorough
and detailed enquiry.
In the present case, the CIT has directed the Assessing Officer to
make necessary examination regarding the extent of land acquired by the
assessee with reference to which land premium of Rs.3,50,00,000/- was
demanded and rate at which said land was acquired and to whom the
lands were sold and land premium was received and such receipts on
account of transfer fees and stamp duty would constitute capital receipts.
We are of the opinion that the Assessing Officer will make enquiries as
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directed by the CIT and make fresh assessment. Accordingly, we uphold
the order of the CIT and dismiss the ground of appeal of the assessee.
In the result, appeal filed by the assessee is dismissed.
Order pronounced on 5 /03/2018. Sd/- sd/- (N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIALMEMBER Cuttack; Dated 5 /03/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : CDA, Cuttack 2. The Respondent. CIT, Cuttack 3. The CIT(A)- 4. Pr.CIT- 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//
BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack