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Facts
The assessee, an individual, did not file an income tax return for AY 2015-16. During the assessment of another individual, it was revealed that the assessee had given Rs. 1,58,94,320/- in cash to her husband. The Assessing Officer reopened the assessment under Section 147. The assessee then filed a return and claimed exemption under Section 54F for the purchase of a house property.
Held
The Tribunal held that the Principal CIT (PCIT) had the jurisdiction to revise the assessment order under Section 263. The PCIT rightly set aside the assessment order to the AO for examining the claim of deduction under Section 54F, as the initial assessment had failed to do so. The assessee's appeal was dismissed.
Key Issues
Whether the PCIT had the jurisdiction to revise the assessment order under Section 263 when the issue examined was related to the original reasons for reopening under Section 147. Whether the AO had properly examined the claim of deduction under Section 54F.
Sections Cited
263, 147, 148, 143(3), 139(1), 54F, 144B, 151, 147(a)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “B”, PUNE
Before: DR.MANISH BORAD & SHRI VINAY BHAMORE
आदेश / ORDER
PER DR. MANISH BORAD, ACCOUNTANT MEMBER :
The captioned appeal at the instance of assessee pertaining to A.Y. 2015-16 is directed against the order dated 12.03.2024 of Ld.PCIT, Pune-2 passed u/s.263 of the Income- tax Act, 1961 (hereinafter also called ‘the Act’).
2. Registry has informed that there is delay of 237 days in preferring the instant appeal before this Tribunal. Assessee has filed an application for condonation of delay. The only reason for the delay is that assessee being dependent upon the advice of legal consultant believed that since ld.PCIT has already set aside the issue to the file of ld. Assessing Officer there is no need to file the appeal before this Tribunal. Later on, when the assessee contacted other counsels, he came to know that he had the right to file the appeal against the order of ld.PCIT Tejashree Atul Patil u/s.263 of the Act. Considering it to be a ‘reasonable cause’ and that the assessee would not have gained by delaying the filing of appeal, the delay of 237 days is condoned in light of judgments of Hon’ble Apex Court Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 and in the case of Inder Singh Vs. State of Madhya Pradesh judgment dated 21.03.2025 (2025 INSC 382).
Brief facts of the case are that the assessee is an individual and did not file the return of income for A.Y. 2015- 16. As far as information available with the income-tax department during the assessment proceedings in another assessee namely Mr. Atul Avinadh Patil, it was noticed that the assessee has given Rs.1,58,94,320/- to Mr. Atul Avinash Patil in cash during F.Y. 2014-15. Since huge amount in cash given by the assessee to her husband and no return of income filed, ld. Assessing Officer had reason to believe that Rs.1,58,94,320/- had escaped the assessment and accordingly issued notice u/s.148 of the Act on 31.03.2021 and reopened the assessment u/s.147 after duly recording the reasons. Assessee in response to the notice furnished reply and also filed the return of income declaring income of Rs.2,51,710/-. Ld. Assessing Officer based on the submissions filed by the assessee wherein assessee stated that she sold immovable property during F.Y. 2014-15 and the amount given to her husband is out of the sale consideration, accepted the contentions and completed the assessment accepting the returned income.
4. Thereafter, ld. PCIT called for the assessment records and observed that Assessing Officer had apparently failed to notice that all conditions for eligibility under the provisions of section 54F were not fulfilled by the assessee and following two show cause notices dated 15.01.2024 and 23.02.2024 were issued :
“Show cause letter dated 15.01.2024
3. On verification of the assessment records, it is found that you had claimed exemption u/s 54F of the income Tax Act on two residential properties amounting to Rs.55,02,100/- and Rs.50,00,000/- The provision of section 54F is as under:
54F. (1) Subject to the provisions of sub-section (4), where, in the case of art assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say- …………… Provided that nothing contained in this sub-section shall apply where- (a) the assessee.-
(i) owns more than one residential house, other than the new asset on the date of transfer of the original asset, or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or As such, it appears that you have fulfilled the aforesaid condition of the Act, therefore, is appears that the AO has allowed the deduction under section 54F of Income-tax Act, 1961 wrongly.
For the reasons stated hereinabove, the order made by the Assessing Officer in your case for the A.Y. 2015-16 appears to be erroneous in so far as it is prejudicial to the interest of the revenue. Accordingly, and by virtue of the authority vested in the undersigned as per the provisions of section 263 of the Tejashree Atul Patil Income Tax Act 1961, the said order is proposed to be revised under the said section." Show cause letter dated 23.02.2024 2. Vide your submission given to the FAO you had stated that "on 24.09.2014 a part of the receipt from the Sales proceedings (Rs.45,00,000) was converted in to a Fixed Deposit in the name of Tejashree Patil for only about 15 days & an amount of Rs 45,09,320. This FD Number was 34232339571 in SBI Kothrud. An appreciation of the above submission shows that the FD was made on 24.9.2014. The due date of Sling of return for AY 2015-16 was 31.7.2015, which was extended to 31.8.2015. This implies that the FD was made beyond the due date of filing of return. Hence in the instant case, no return of income was filed by you for AY 2015-16 u/s 139(1). Further as per the provisions of the Act, you had to deposit the 'un-utilized sale consideration into a special "Capital Gain account" (and not in FD] with the specified banks before the due date of filing of return. Hence it appears that the said pre-requisite of sec 54F was not fulfilled by you in the instant case, as the amount was not deposited in special capital gain account, before due date of filing of ROI. As such even on this count you do not appear to be eligible to claim exemption u/s 54F for the second house property purchased on 24.05.2015 3. In this regard, an opportunity of being heard s being provided to you on 01.03.2024 at 03.00 PM. You are requested to make your submissions along with documentary evidences in support of your contention."
5. Assessee duly responded to the show cause notices and furnished the information about the purchase of residential properties for which deduction u/s.54F have been claimed. However, ld. PCIT was not satisfied with the said submissions and after detailed discussion made in pages 10 to 16 of the impugned order finally came to a conclusion that net consideration to the extent of Rs.48,97,888/- was admittedly not utilized in full on or before 31.08.2015 which happened to be the due date prescribed for her to file the income-tax return for A.Y. 2015-16. Therefore, the said claim for availing benefit of deduction u/s.54F is hit by the fact that within the Tejashree Atul Patil stipulated time full utilization was not made by her of the net consideration received by her from transfer of the original asset. Accordingly, ld. PCIT set aside the assessment order dated 22.03.2022 u/s.143(3) of the Act and gave directions for framing the fresh assessment order in respect of the issues discussed in the impugned order u/s.263 of the Act.
Aggrieved assessee is now in appeal before this Tribunal raising following grounds of appeal :
“1. On the facts and in the circumstances of the case and in law the learned Principle Commissioner of Income Tax gravely erred in assuming jurisdiction for revision of income under section 263 of the Income Tax Act 1961 thereby making the order passed under section 263 bad in law and void ab initio and may kindly be quashed.
2. On the facts and in the circumstances of the case and in law the learned Principle Commissioner of Income Tax gravely erred in assuming the jurisdiction beyond the scope for which the reopening proceedings were initiated and concluded.
3. On the facts and in the circumstances of the case and in law Ld. Principal CIT Pune -2 has erred in law and on facts assuming jurisdiction in passing the 4 order u/s.263, more so when the assessment order u/s.143(3) r.w order u/s.147 dt.22.03.2022 was neither erroneous nor prejudicial to the interest of Revenue. Thus, order passed by Ld. Principal CIT Pune -2 is bad in law, erroneous and may kindly be quashed.
4. The appellant would like to leave, add, alter, amend, modify, delete, above grounds of appeal before or during the course of hearing in the interest of natural justice.”
7. At the outset, Ld. Counsel for the assessee referring to Ground Nos. 1 to 3 submitted that ld. PCIT gravely erred in assuming jurisdiction beyond the scope for which the reassessment proceedings were initiated and concluded. Ld. Counsel for the assessee submitted that the issues raised in the show cause notice u/s.263 of the Act was not the subject matter and reasons recorded for reopening the assessment proceedings. Therefore, ld. PCIT erred in assuming jurisdiction.
Tejashree Atul Patil Referring to the following decisions, he claimed that ld. PCIT cannot assume jurisdiction u/s.263 of the Act for the new issues which were never the subject matter of the assessment in proceedings initiated u/s.147 of the Act :
“1. Sipura Developers (P) Ltd. Vs. PCIT (2024) 168 taxmann.com 543(Delhi 2. CIT Vs. Usha Martin ventures Ltd. (2023) 150 taxmann.com 491 (Calcutta) 3. Siddhi Infrabuild (P) Ltd. Vs. PCIT (2025) 172 taxmann.com 232 (Gujarat) 4. Mrs. Pushpa G. Bansal Vs. PCIT – 884 & 885/PUN/2016 order dated 12.05.2022 5. Hotel Babylon Continental (P) Ltd. Vs. PCIT (2024) 164 taxmann.com 306 (Raipur – Trib.).”
So far as merits of the case are concerned, ld. Counsel for the assessee made general submissions that the details were filed before the ld. AO. However, he could not reply to any specific query raised during the course of hearing with regard to the claim of deduction u/s.54F of the Act and the details if any filed by the assessee. Inspite of being given ample opportunity, Ld. Counsel for the assessee made submissions only with regard to the assumption of jurisdiction u/s.263 of the Act but could not make any specific submissions about the correctness of claim of deduction u/s.54F of the Act.
On the other hand, ld. DR vehemently argued supporting the order of ld. PCIT and also took u/s. through the relevant finding of ld. PCIT as discussed in para 4 to 8 of the impugned order.
We have heard the rival contentions and perused the record placed before us. Assessee is aggrieved with the order of ld. PCIT assuming jurisdiction u/s.263 of the Act. We find that the provision of Section 263 of the Act has direct bearing on the issue raised before us, therefore, it is pertinent to take note of this section which reads as under:
"263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
Explanation- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,-
(a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include-
(i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A;
(ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120;
(b) record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner;
(c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal.
(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.
(3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of Tejashree Atul Patil the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded."
On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pendency of those proceedings. On an analysis of the record and of the order passed by the Assessing Officer, he formed an opinion that such an order is erroneous in so far as it is prejudicial to the interests of the Revenue. By this stage the learned Commissioner was not required the assistance of the assessee. Thereafter the third stage would come. The learned Commissioner would issue a show cause notice pointing out the reasons for the formation of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. He may set aside the order and direct the Assessing Officer to pass a fresh order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263.
Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 243 ITR 83 (SC)has laid down following ratio with regard to provisions of section 263 of the Act:
“There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer; it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the ITO has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the ITO is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue - RampyariDevi Saraogi v. CIT [1968] 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC). [Emphasis Supplied]”
Now examining the contentions of ld. Counsel for the assessee in light of the settled judicial precedents, the main plea of ld. Counsel for the assessee is that the reason for reopening the assessment was regarding the source of cash of Rs.1,58,94,320/- given to her husband Mr.Atul Avinash Patil during F.Y. 2014-15 and that the assessee has not filed her income tax return. He submitted that the reasons was to examine the income chargeable to tax amounting to Rs.1,58,94,320/-. However, ld. PCIT has referred to the new issue of deduction u/s.54F of the Act which was not the subject matter of reopening and therefore the ld. PCIT has erred in assuming jurisdiction.
We notice that the following reasons were recorded for reopening of the assessment in the case of the assessee :
“Reasons for reopening of the assessment in case of Tejashree Atul Patil, for Α.Υ. 2015-16 01. The assessee is an individual. On verification, it is found that the assessee bas neither filed return of income nor paid the due taxes for A.Y. 2015-16.
An information has been received from ACIT, Circle-2, Pune in the case of Tejashree Atul Patil (PAN: ABJPP1092J) for A.Y. 2015-16. As per the information, the case of Shri. Atul Avinash Patil was selected in CASS scrutiny for A.Y. 2015-16. During the course of assessment proceedings in the case of Shri. Atul Avinash Patil, it is found that Smt. Tejashree Atul Patil has given Rs. 1,58,94,320/- to Shri Atul Avinash Patil in cash during the F.Y. 2014-15.
3. In this case, it is found that the assessee has not filed the return of income for A.Y. 2015-16. However, as per the information, the assessee Smt. Tejashree Atul Patil has given the cash of Rs. 1,58,94,320/- to Shri. Atul Avinash Patil during the F.Y. 2014-15, which is the income of the assessee for A.Y 2015-16 which was not offered for taxation due to non filing of ITR for A.Y 2015-16. I have therefore, reason to believe that the income chargeable to tax amounting to Rs. 1,58,94,320/-has escaped assessment within the meaning of provisions of section 147(a) of the IT Act, 1961.
4. In this case, no return of income was filed for the year under consideration accordingly, in this case, no assessment was made and the only requirement to initiate proceedings u/s 147 is reason to believe which has been recorded above.
It is pertinent to mention here that in this case the assessee has chosen not to file return of income for the year under consideration although the total income of the assessee had exceeded the maximum amount which is not chargeable to tax as discussed in paragraph 2 above and the assessee was assessable under the Act. In view of the above, the provisions of clause (a) of explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment.
Tejashree Atul Patil 06. In this case more than four years have lapsed the end of the assessment year under consideration. Hence, necessary sanction to issue the notice u/s 148 has been obtained from Principal Commissioner of Income Tax as per the provisions of section 151 of the Act.”
Now on the basis of above said reasons, ld. AO has carried out the reassessment proceedings because firstly the assessee has not filed the return of income and secondly cash of Rs.1,58,94,320/- was given by the assessee to her husband. Ld. AO had reason to believe that the income chargeable to tax amounting to Rs.1,58,94,320/- has escaped the assessment. Now based on this reason, re-assessment proceedings was initiated and details were called from the assessee who is an individual. During the course of reassessment proceedings assessee claimed that during the year under consideration she has sold immovable property and out of the sale consideration so received, she has utilized part of it for giving the amount of Rs.1,58,94,320/- in cash to her husband. Undisputedly, the reason for re-assessment was escapement of Rs.1,58,94,320/- and ld. AO was required to examine the source of this income. Now once the source of cash is stated to be sale of immovable property, this transaction of sale of immovable property is directly connected to the reasons recorded about the escapement of income of Rs.1,58,94,320/-. The issue mentioned in the reasons recorded and the transaction of sale of immovable property are directly connected and ld. AO had to examine this transaction and also the income earned for the year. Once the sale of immovable property is to be enquired, then the details filed by the assessee relating to cost of acquisition, any deduction under the capital gains head if any made before the AO requires to be examined so as to assess the income of the assessee for the year. This argument of ld. Tejashree Atul Patil Counsel for the assessee that the issue raised by ld. PCIT in the show cause notice regarding claim of deduction u/s.54F of the Act is different from the reasons recorded by ld. AO for carrying out the re-assessment proceedings is incorrect because there is direct connection of the deduction u/s.54F of the Act in the given case of escapement of income amounting to Rs.1,58,94,320/-. It is not the case where the assessee has filed the return of income and showed the transaction but it is a case where inspite of having entering into a transaction of sale of immovable property, assessee has decided not to file the return of income. Therefore, in our considered view, the issue referred by ld. PCIT in the show cause notice u/s.263 of the Act was the subject matter of the proceedings initiated u/s.147 of the Act for carrying out the re-assessment proceedings. Ld. AO was required to examine the issue of escapement of income and was required to raise specific queries for the transaction regarding sale of immovable property and income earned during the year. However, ld. AO miserably failed to make necessary enquiry to examine the assessee’s claim of deduction u/s.54F of the Act.
Now so far as the judgments relied and referred by the ld. Counsel for the assessee, we find that they are not applicable on the facts of the instant case. In all the cases referred by ld. Counsel for the assessee, the respective assessees have filed regular returns of income and secondly the revisionary proceedings were carried out on some other matters which was not subject matter of the assessment proceedings initiated u/s.147 of the Act. Therefore, the assessee will not have the benefit of the judgments referred in the legal compilation. In our considered view, assessee fails to succeed on the Ground
So far as merits of the case, in absence of any specific contentions given by ld. Counsel for the assessee, we are inclined to confirm the finding of ld.PCIT that the assessment order for A.Y. 2015-16 passed u/s.147 r.w.s.144B of the Act is erroneous and prejudicial to the interest of the revenue and ld. PCIT has rightly set aside the issue to the file of ld. AO for examining the claim of deduction u/s.54F of the Act. Finding of ld. PCIT is confirmed. Grounds of appeal raised by the assessee are dismissed.
In the result, appeal of the assessee is dismissed.
Order pronounced on this 08th day of September, 2025.