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Income Tax Appellate Tribunal, DELHI BENCH G, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
ORDER PER H.S. SIDHU, JM
The Assessees have filed these appeals which are emanate from the respective orders dated 28.3.2013 & 26.3.2013 of the Ld. CIT(Central), Gurgaon pertaining to A.Yrs. 2005-06 & 2006-07. Since the issues involved in these appeals are common and identical, hence, the appeals 1 were heard together and are being disposed of by this common order for the sake of convenience.
The grounds raised in (AY 2006-07) read as under:-
ITA No. 2871 (AY 2006-07)
“The Ld. CIT erred in invoking the provision of 263 of the I.T. Act on the basis that the assessee wrongly claimed long term capital gain. The Ld. CIT has wrongly presumed that there is short term gain out of the assets purchased during assessment year 2005-06. The assessee never purchased any assets during assessment year 2005-06. It was an old property.
The Ld. CIT verified all the previous year record since
1991 i.e. from the date of purchase of property and house tax receipt and erred in giving the direction to make the addition of Rs. 1,30,476/- in the computation of capital gain without appreciating the information submitted by the assessee.
The assessee declared all the fact and information and rightly claimed the long term capital gain.
The Ld. CIT dropped the proceeding in the case of Mrs.
Pinki Bedi (wife / joint owner) and whereas in the case 2 of assessee the direction have been given to modify the assessment where the facts and property in both the cases is same.
The Ld. CIT presumed that the stamp charges and Corporation tax of Rs. 68,000/- could have also been capitalized.
As per clause 12, this cost ought to have been borne by the vendors.
The Ld. CIT could not appreciate the fact and information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. The order of Ld.
CIT is wrong and bad in law. Having regard to the fact applicable to the case.
The grounds raised in (AY 2005-06) read as under:-
“The Ld. CIT erred in invoking the provision of 263 of the I.T. Act on the basis that the assessee wrongly claimed long term capital gain. The Ld. CIT has wrongly presumed that there is short term gain out of the assets purchased during assessment year 2005-06. The assessee never purchased any assets during assessment year 2005-06. It was an old property.
The Ld. CIT verified all the previous year record since
1991 i.e. from the date of purchase of property and house tax receipt and erred in giving the direction to make the addition of Rs. 1,30,476/- in the computation of capital gain without appreciating the information submitted by the assessee.
The order passed by Ld. CIT u/s. 263 is wrong and bad in law as he has passed one order for two separate assessment year i.e. 2005-06 and 2006-07 and gave the direction for the assessment year 2005-06 only.
The assessee declared all the fact and information and rightly claimed the long term capital gain. The Ld. CIT could not appreciate the fact and information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. The order of Ld. CIT is wrong and bad in law. Having regard to the fact applicable to the case.
The grounds raised in (AY 2005-06) read as under-
The Ld. CIT has erred by giving the direction of sale consideration received may be treated as per principle by applying the provision of section 68 of the I.T. Act.
The assessee furnished the record from the date of purchase of property till the date to sale which has wrongly been shown under the head of Advance against property.
The Ld. CIT has not appreciated agreement to sale and other record confirming the assessee has taken the possession of property.
The Ld. CIT has not appreciated the fact that the assessee has sold and handed over complete lot of agricultural land against which payment were received by cheque and deposited the bank account of the assessee. the Ld. CIT has not appreciated the fact that sale consideration received was in respect of agricultural land and capital gain arising from agricultural land is exempt u/s. 10 of the I.T. Act.
The Ld. CIT could not appreciate the fact information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. The order of Ld. CIT is wrong and bad in law. Having regard to the fact applicable to the case.
First we deal with & 2872/Del/2013 (AY 2006-07 & 2005-06) in the matter of Sunil Bedi & Pinki Bedi respectively, together being issues similar and identical.
The brief facts of the case are that assessee is an individual and is a Director in the company M/s JMD Ltd. A search and seizure operation was carried out at the premises of the assessee on 06.8.2008, thus notice u/s. 153A for AY 2006-07 was issued to the assessee on 26.11.2009. In response to the notice, the assessee filed his return of income declaring income of Rs. 48,22,113/- and assessment u/s. 153A(1)(b) was completed by the AO on 30.12.2010 at an income of Rs. 48,22,113/-. AO observed that assessee sold his half share in F-4, Nizamudin (W) on 21.4.2005, the cost of acquisition and improvement was taken as Rs. 4,30,000/- and Rs. 5,54,538/- making a total of Rs. 9,84,538/-. But no house of value Rs. 9,84,528/- existed in the balance sheet of AY 2005-06. Ld. CIT examined the assessment records, suggested that while finalizing the assessment order for AY 2006-07, the AO did not consider the factual position that did not make inquiry or investigation on the above issue. Failure to make such inquiry, resulting in undue benefit to the assessee, has made the assessment orders for this year erroneous and prejudicial to the interest of revenue. Accordingly, he issued a notice u/s. 263 of the Act to the assessee on 31.1.2013 and the case was fixed for hearing on 14.2.2013. In response to the notice, the A.R. of the assessee attended the proceedings from time to time and submitted written replies stating that the property in consideration, F-4, Nizamudin (West), Delhi was purchased in the joint name i.e. Mr. Sunil Bedi and Mrs. Pinky Bedi (wife) through a purchase deed dated 2.6.1989 for a sum of Rs. 8,60,000/-. The assessee has shown half of the cost price of this house property in the books of account regularly. In support of the contention, a copy of computation of income and balance sheet for the AY 1990-91 was filed showing the value of property at Rs. 4,30,000/-. Ld. CIT observed that it is the case of the assessee that after the purchase of the house suitable construction was raised, therefore, its value increased from Rs. 4,30,000/- to Rs. 9,84,538/-. This indicated that the contribution of the assessee towards construction was Rs. 5,54,538/-. In support of the contention, the assessee provided copies of computation of income asset statements for the AY 1994-95 and 1995-96 showing the value of asset (Nizamudin House) at Rs. 8,24,000/-. As per the Ld. CIT, no evidence has been filed regarding value of this property in the years subsequent to these years. In response to notice u/s. 7 263 of the Act asking the assessee to explain the reason for non-appearance of the property in the balance sheet for FY 2994095 (AY 2005-06). The assessee filed a written reply dated 14.2.2013. Thereafter, after considering the reply, the Ld. CIT held that after examination of the record of the proceedings and the submissions made by the assessee in the course of proceedings u/s. 263 of the I.T. Act, the Ld. CIT holds that the assessment order passed by the AO is erroneous in so far as it is prejudicial to the interests of the revenue and directed the AO to enhance / modify the assessment and frame a fresh assessment for the year under consideration in the case of the assessee vide order dated 28.3.2013 passed u/s. 263 of the Act, by observing the following facts:-
a) The assessee did not provide any evidence of value of the property and treatment given to such capitalization in the returns for all the assessment years in continuation but choose to file broken evidences. A sudden change about capitalization of house tax in one year does not appear to be probable. b) In order to arrive at figure of Rs. 1,30,476/- (being capitalization of House Tax) the assessee had to make number of manipulations by adopting an opening figure of Rs. 1672/- and adopt payment of 7th September, 2008 as a whole in both hands Sunil Bedi and Pinki Bedi without splitting half each. There is huge variation of house tax paid in different years and some of the years are missing where no house tax is paid. iii) If a person inadvertently capitalization of house tax paid, it is unbelievable that such an old record would be fetched to commit an unwarranted error. This is to be considered in the background that when this property was purchased on 2.6.1989 at that time besides the stamp charges of Rs. 25,800/- there was Corporation Tax of Rs. 43,000/- paid making a total of Rs. 68,000/-. The assessee could have legally capitalize one half of this account. However, neither this payment was explained nor capitalized but assessee is making the revenue authorities believe that some other part of house tax payment was capitalized inadvertently.
Against the aforesaid order of the Ld. CIT passed u/s. 263 of the Act dated 28.3.2013, assessee is in appeal before the Tribunal.
Ld. Counsel of the assessee has stated that Ld. CIT erred in 8. invoking the provision of 263 of the I.T. Act on the basis that the assessee wrongly claimed long term capital gain. He further stated that it was wrongly presumed that there is short term gain out of the assets purchased during assessment year 2005-06. However, the assessee never purchased any assets during assessment year 2005-06. It was an old property. He further stated that Ld. CIT verified all the previous year record since 1991 i.e. from the date of purchase of property and house tax receipt and erred in giving the direction to make the addition of Rs. 1,30,476/- in the computation of capital gain without appreciating the information submitted by the assessee. The assessee declared all the fact and information and rightly claimed the long term capital gain. It was the further contention that Ld. CIT dropped the proceeding in the case of Mrs. Pinki Bedi (wife / joint owner) and whereas in the case of assessee the direction have been given to modify the assessment where the facts and property in both the cases is same. It was also wrongly presumed that that stamp charges and Corporation tax of Rs. 68,000/- could have also been capitalized. However, as per clause 12, this cost ought to have been borne by the vendors. The Ld. CIT could not appreciate the fact and information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. 10 The order of Ld. CIT is wrong and bad in law. Hence, he submitted that AO has made the assessment judiciously after making all the enquiries / verification, which has been replied and on the basis of the said reply, the AO has made the assessment. Despite that the Ld. Commissioner of Income Tax has wrongly invoked Section 263 of the Act, which is not sustainable in the eyes of law and therefore, the same should be quashed.
On the contrary, Ld. DR relied upon the order of the Ld. CIT. In support of his contention he filed a copy of the submissions of Revenue on provisions of Income Tax Act and position of law on the issue of Section 263.
We have carefully considered the rival submissions and perused the relevant records available with us, especially the impugned order passed by the Ld. CIT u/s. 263 of the Act alongwith Paper Book filed by the Assessee as well as the Written Submissions filed by the Revenue before us. After perusing the aforesaid order of the Ld. CIT, we are of the considered opinion that the order Ld. CIT is totally erred by invoking the section 263 of the Act on the basis that the assessee wrongly claimed long term capital gain. We further note that it was based on wrong assumption that there is short term gain out of the assets purchased during assessment year 2005-06. However, the assessee never purchased any assets during assessment year 2005-06 and it was an old property. We also find that Ld. CIT verified all the previous year 11 record since 1991 i.e. from the date of purchase of property and house tax receipt and erred in giving the direction to make the addition of Rs.1,30,476/- in the computation of capital gain without appreciating the information submitted by the assessee. The assessee declared all the fact and information and rightly claimed the long term capital gain. Ld. CIT also wrongly presumed that stamp charges and Corporation tax of Rs. 68,000/- could have also been capitalized. However, as per clause 12, this cost ought to have been borne by the vendors. This fact was not appreciated and also the fact and information provided by AO, the Ld. CIT wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. In our considered opinion, the order of Ld. CIT is wrong and bad in law, because AO has made the assessment judiciously after making all the enquiries / verification, which has been replied and on the basis of the said reply, the AO has made the assessment. Despite that the Ld. Commissioner of Income Tax has wrongly invoked Section 263 of the Act, because the AO made the assessment under section 153A(1)(b) of the I.T. Act, 1961 after investigating the records of the assessee and no discrepancy in books of accounts was found by the AO during assessment proceedings. We further find that in the Paper Book the assessee has attached the copy of I.T. return, computation and acknowledgement AY 2006-07; balance sheet and schedule for the year ending 2006; IT return and computation AY 2005-06; 12 balance sheet as schedule period ending 31.3.2005; income tax acknowledgement, computation 1998-99; balance sheet, P&L account as schedule AY 1998; Details of house tax paid MCD as receipts; ledger account of property; detail of house tax paid receipts. We note all the these documents were submitted at the time of proceeding before the Ld. CIT. We find that the Hon’ble Supreme Court in the case of CIT vs. Green World Corporation 314 ITR 81 (SC) has held as under:-
“The jurisdiction u/s. 263 can be exercised only when both the following conditions are satisfied: i) The order of the AO should be erroneous; and ii) It should be prejudicial to the Revenue interest. These conditions are conjunctive. An order of assessment passed by the AO should not be interfered with only because another view is possible.”
An order would be erroneous only when the AO makes no enquiries during the course of assessment proceedings. This principle was noticed by the Delhi High Court in Geevee Enterprises vs. Addl. CIT 99 ITR 375 (Del.). In arriving at this decision, the Delhi High Court drew strength from the principles laid down by the Supreme Court in Rampyari Devi Sarogi vs. CIT 67 ITR 84 (SC) and Tara Devi Agarwal vs. CIT, 88 ITR 324 (SC). The underlying principle which emerges from these judgments is that if an assessment order is passed without making any enquiries, then 13 such an order would be erroneous. But in the prsent case, the regular books of accounts, viz. the cash book, the ledger, the bank account statements, were produced by the assesee which were verified and examined vis-à-vis the findings of the search (cash found, jewellery found, immovable property found), the diary / loose sheets found and facts emerging out of the statements recorded under section 132(4) of the Act, and the financial statements filed by the with the return of income. We further find that the case laws cited by the Ld. DR are not applicable in the present case.
In the background of the aforesaid discussions, we hold that the impugned order passed by the Ld. CIT u/s. 263 of the I.T. Act is without jurisdiction and not sustainable in the eyes of law. Accordingly, the impugned order is hereby quashed and appeal of the assessee is allowed.
In the result, both the Appeals i.e. & 2872/Del/2013 (AY 2006-07 in the case of Mr. Sunil Bedi’s case) & (AY 2005-06 in the case of Mrs. Pinki Bedi) stands allowed.
Now we deal with (AY 2005-06) in the case of Sunil Bedi.
The brief facts of the case are that assessee is an individual and is a Director in the company M/s JMD Ltd. A search and seizure operation was carried out at the premises of 14 the assessee on 06.8.2008, thus notice u/s. 153A for AY 2006- 07 was issued to the assessee on 26.11.2009. In response to the notice, the assessee filed his return of income declaring income of Rs. 31,02,183/- and assessment u/s. 153A(1)(b) was completed by the AO on 30.12.2010 at an income of Rs. 98,55,183/-. However, the assessment record of Sh. Sunil Bedi showed the following:-
Capital gains Long Term Capital Gain Sale of land Sale consideration 2,500,050.00 Less: Indexed Cost of Acquisition (1558033.00) 942,017.00 14.1 The AO observed that indexed cost has been worked out by adopting value of Rs. 9,90,000/- as price and applying index of FY 1996-97 (305) and FY 2004-05(480) as indexed cost = (990000 x 480)/305 = Rs. 15,80,033/-. But no such land of this value existed in the balance sheet of AY 2004-05. The Ld. CIT examined the assessment records, suggested that while finalizing the assessment order for AY 2005-06, the AO did not consider the factual position and did not make inquiry or investigation on the above issue. Failure to make such inquiry, resulting in undue benefit to the assessee, has made 15 the assessment orders for this year erroneous and prejudicial to the interest of revenue. Accordingly, he issued a notice u/s. 263 of the Act to the assessee on 31.1.2013 and the case was fixed for hearing on 14.2.2013. In response to the notice, the A.R. of the assessee attended the proceedings from time to time and submitted written replies. In response to specific query raised in notice u/s. 263 of the Act asking the assessee to explain the reason for non-appearance of the property in the balance sheet. The assessee filed a written reply dated 14.2.2013 stating therein as follows:-
“In the above matter we are in receipt of your notice u/s. 263 of the I.T. Act, as per which your goodself has proposed to revise assessment order dated 30.12.2010 on the basis of fact that the assessee has not disclosed cost of land of Rs. 9,90,000/- as it is not appearing in the balance sheet for the assessment year 2004-05.
Your kind attention is drawn to the fact that the assesse has shown cost price of this property which is an agricultural land in the balance sheet for the year ending 31.3.2004. This property is appearing under the head of “Advances which is appearing in the name of Survin Udyog Ltd., from whom this property was purchased. This property was purchased during the year 1996-97 and this amount is also appearing in the balance sheet of the assessee of that year. All these facts were there at the time of assessment with AO. We are furnishing herewith copy of assessment order for the assessment year 2004-05 wherein all these information were provided to the AO.”
14.2 After considering the aforesaid reply, Ld. CIT observed that document of sale does not inspire confidence as it does not contain as on which date the possession is handed over and the document is executed on non-judicial paper. The document does not transfer any rights except the handling over of the vacant possession without assuring the transfer of tile on any future date. The document has not parted with any ownership rights or claims to the buyer and this document can be treated as handing over possession of vacant land which may be for any other purpose say use for a fixed period such as rent. Therefore, the Ld. CIT have the following directions vide his order dated 28.3.2013 passed u/s. 263 of the Act:-
I. The genuineness of sale transaction should be examined by recovery the statements of buyers to find out capacity to pay the sale consideration and genuineness of sale transaction documents. If it is found that sale is not genuine, the entire sale consideration received by the assessee partakes the character of cash credit and should be dealt with accordance to the settled principles of application of section 68 of the Income Tax Act. The assessee will not be entitled to any exemption u/s. 54 of the Income Tax Act. II. It based on the documents of sale, transaction is found to be genuine then the assessing will re-assess the capital gains by aggregating transaction of sale I & II as under:- Sale consideration = 20,52,000/- Cost of acquisition (Rs. 4,95,000/- Indexed cost = 7,79,016/- (495000 x 480)/305 12,72,984/-
The above amount of Rs. 12,72,984/- would be charged to long term capital gain for sale transaction I & II.
III. In respect of sale transaction no III, the A.O. would enhance value of sale consideration from Rs. 2890.64 per marla to Rs. 6412.50 per marla as discussed above. Thus for the area of 7K 15 M155M), transacted through sale III, the consideration would assumed at Rs. 9,93,937(155 x 6412.50). Since this area of land was purchased as part of a composite purchase of 16K (=320M) for Rs. 4,95,000/-, therefore, at this rate the purchase price of 155M would come to Rs. 2,39,765/-. This purchase price is further indexed as (480/305) comes to Rs. 3, 77,335/-. The Long term capital for this transaction should be recomputed as under:-
Assumed Sale Consideration = 9, 93,937
Indexed Cost of Acquisition = 3, 77,335 6,16,602 14.3 After examination of the record, the Ld. CIT held that the assessment order passed by the AO is erroneous in so far as it is prejudicial to the interests of the revenue and directed the AO to enhance / modify the assessment and frame a fresh assessment for the year under consideration in the case of the assessee.
14.4 Against the aforesaid order of the Ld. CIT passed u/s. 263 of the Act dated 28.3.2013, assessee is in appeal before the Tribunal.
Ld. Counsel of the assessee has stated that Ld. CIT has erred by giving the direction of sale consideration received may be treated as per principle by applying the provision of section 68 of the I.T.
Act. However, the assessee furnished the record from the date of purchase of property till the date to sale which has wrongly been shown under the head of Advance against property. He further stated that Ld. CIT has not appreciated agreement to sale and other record confirming the assessee has taken the possession of property. It was also the contention of the Ld. Counsel of the assessee that the Ld. CIT has not appreciated the fact that the assessee has sold and handed over complete lot of agricultural land against which payment were received by cheque and deposited the bank account of the assessee and he has not appreciated the fact that sale consideration received was in respect of agricultural land and capital gain arising from agricultural land is exempt u/s. 10 of the I.T. Act. He further stated that Ld. CIT could not appreciate the fact information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. Hence, the order of Ld. CIT is wrong and bad in law, which needs to be quashed.
On the contrary, Ld. DR relied upon the order of the Ld. CIT. In support of his contention he filed a copy of the submissions of Revenue on provisions of Income Tax Act and position of law on the issue of Section 263.
We have carefully considered the rival submissions and perused the relevant records available with us, especially the impugned order passed by the Ld. CIT u/s. 263 of the Act alongwith Paper Book filed by the Assessee as well as the Written Submissions filed by the Revenue before us. After perusing the impugned order, we note that a search and operation was carried out at premises of the assessee on 6.8.2008 and therefore, the assessment was completed u/s. 153(1)(b) of the I.T. Act and non incremental documents were seized from the premises of the assessee. The assessee declared the long term capital gain from the sale of agricultural land during the AY 2005-06. We note that Ld. CIT has declared the cost price of the property which is “agricultural land” in the balance sheet for the AY 2004-05 also. This property had been appearing under the head of advance which is appearing in the name of “Survani Udhyog Ltd.” from whom this property was purchased. This property was purchased during the year 1996-97 and the amount has also been appearing in the balance sheet of the assessee since then. The purchase documents of the property were submitted at the time of hearing including all the copy of th agreement to sale and the possession letter receipt, in respect of the purchased of said agricultural land were submitted. Therefore, in our view, Ld. CIT has wrongly initiated the 21 proceedings u/s. 263 as the purchase of agriculture land had been appearing in the books of accounts since 1996-97 (AY 1997-98) and all these facts were disclosed in the balance sheet of the assessee since then. We are of the considered opinion that Ld. CIT is not right by giving the direction of sale consideration received may be treated as per principle by applying the provision of section 68 of the I.T. Act, because the assessee furnished the record from the date of purchase of property till the date to sale which has wrongly been shown under the head of Advance against property. It is an undisputed fact that Ld. CIT has not appreciated agreement to sale and other record confirming the assessee has taken the possession of property. It was not appreciated by the Ld. CIT that the assessee has sold and handed over complete lot of agricultural land against which payment were received by cheque and deposited the bank account of the assessee and he has not appreciated the fact that sale consideration received was in respect of agricultural land and capital gain arising from agricultural land is exempt u/s. 10 of the I.T. Act. We further find that Ld. CIT could not consider the fact information provided by AO and wrongly invoked the provision of 263 of the I.T. Act and directed to AO to enhance / modify assessment order. In our considered opinion, the order of Ld. CIT is wrong and bad in law, because AO has made the assessment judiciously after making all the enquiries / verification, which has been replied and on the basis of the said reply, the AO has made the assessment. Despite that the 22 Ld. Commissioner of Income Tax has wrongly invoked Section 263 of the Act, because the AO made the assessment under section 153A(1)(b) of the I.T. Act, 1961 after investigating the records of the assessee and no discrepancy in books of accounts was found by the AO during assessment proceedings. We further find that in the Paper Book the assessee has attached the copy agreement purchase of agriculture land and receipts; Income tax return acknowledgement AY 1997-98; balance sheet and schedules for the year 31st March, 1997 (AY 1997-98); possession letters sale of land; copy of cheques on sale of land and deposit slips; computation and coy of acknowledgement AY 2005-06; copy of letter submitted to Ld. CIT by assessee and copy of notice. We note all the these documents were submitted at the time of proceeding before the Ld. CIT. We find that the Hon’ble Supreme Court in the case of CIT vs. Green World Corporation 314 ITR 81 (SC) has held as under:-
“The jurisdiction u/s. 263 can be exercised only when both the following conditions are satisfied: iii) The order of the AO should be erroneous; and iv) It should be prejudicial to the Revenue interest. These conditions are conjunctive. An order of assessment passed by the AO should not be interfered with only because another view is possible.”
An order would be erroneous only when the AO makes no enquiries during the course of assessment proceedings. This principle was noticed by the Delhi High Court in Geevee Enterprises vs. Addl. CIT 99 ITR 375 (Del.). In arriving at this decision, the Delhi High Court drew strength from the principles laid down by the Supreme Court in Rampyari Devi Sarogi vs. CIT 67 ITR 84 (SC) and Tara Devi Agarwal vs. CIT, 88 ITR 324 (SC). The underlying principle which emerges from these judgments is that if an assessment order is passed without making any enquiries, then such an order would be erroneous. But in the persent case, the regular books of accounts, viz. the cash book, the ledger, the bank account statements, were produced by the assesee which were verified and examined vis-à-vis the findings of the search (cash found, jewellery found, immovable property found), the diary / loose sheets found and facts emerging out of the statements recorded under section 132(4) of the Act, and the financial statements filed by the with the return of income. We further find that the case laws cited by the Ld. DR are not applicable in the present case.
In the background of the aforesaid discussions, we hold that the impugned order passed by the Ld. CIT u/s.263 of the I.T. Act is without jurisdiction and not sustainable in the eyes of law. Accordingly, the impugned order is hereby quashed and appeal of the assessee is allowed.
In the result, all the 03 appeals filed by the Assessee stand allowed.
Order pronounced on 27/10/2017.