KUSUMLATA SONTHALIA ,KOLKATA vs. PRINCIPAL CIT, CENTRAL - 1, KOLKATA , KOLKATA

Coming to the basic relevant facts, we notice that the PCIT’s action under challenge has assumed revision jurisdiction vested u/s 263 of the Act to hold the regular assessment in question framed in assessee’s case on 30.12.2016 as an erroneous one causing prejudice to interest of the Revenue on the ground that the Assessing Officer had failed to carry out factual verification/necessary enquires/investigation regarding the tax-payer’s long term capital losses of Rs.156075/- and gains of Rs.13010/- as per stamp duty valuation(s) of Rs.1465454/-and Rs.1353454/-; respectively. He thus sought to invoke section Kusumlata Sonthalia 50C of the Act as per his section 263 notice dated 10.01.2019 finally culminating in the impugned revision directions.

We notice at the outset that the Assessing Officer had framed his assessment u/s 153A/143(3) forming subject matter of the instant revision proceedings in furtherance to the search dated 05.08.2014 in case of ‘M/s Kushal Group’. And also that the assessee had filed his return on 15.05.2015 admitting total income of Rs.21,24,680/- as per the assessment order in issue.

Learned CIT-DR vehemently supported the PCIT’s assumption of revision jurisdiction on the ground that the Assessing Officer had not carried out the necessary enquire(s) on the issue of assessee’s long-term capital gains/losses. He fails to dispute that we are dealing an unabated assessment since time limit of issuance of scrutiny notice(s) regarding the impugned assessment year 2011-12 was no more available to the Assessing Officer on the date of search falling on 05.08.2014. There is further no quarrel that the impugned revision proceedings relevant to the regular assessment are not based on any incriminating material found/seized during the course of search. The Assessing Officer’s assessment order dated 30.12.2016 invoked section 14A disallowance of Rs.28,492/- only. All these facts and circumstances categorically suggest that since the impugned assessment proceedings pertain to an unabated assessment not based on any incriminating material found/seized during the course of search, the Assessing Officer could not have either taken up or disallowed the assessee’s long term capital losses or gains (supra) as per CIT vs. Kabul Chawla (2016) 380 ITR 573(Delhi), CIT vs. Continental Warehousing Corporation (2015) 374 ITR 645 (Bom) and PCIT vs. Salasar Stock Broking Ltd. GA 1929 of 2016 ITAT No.264/2016 dt. 24.05.2016 (Cal) to this effect. That being the case, the PCIT has erred in law and on facts in holding the Assessing Officer’s assessment in question to be an erroneous one causing prejudice to interest of the Revenue; simultaneously, as held in hon’ble apex court’s landmark decision in Malabar Industries Co. 243 ITR 83(SC) and Max India vs. CIT 295 ITR 282. We therefore Kusumlata Sonthalia reverse the PCIT’s revision directions for this reason alone. The Assessing Officer’s assessment dated 30.12.2016 stands restored as a necessary corollary.

This assessee’s appeal is allowed.