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PER PAWAN SINGH, JUDICIAL MEMBER:
This appeal by assessee under section 253 of the Income-Tax Act (“The Act”) is directed against the order ld. CIT(A)-19, Mumbai passed under section 263 dated 18.01.2013 for Assessment Year (AY) 2008-09. The assessee has raised the following grounds of appeal:
1. The learned CIT-19, Mumbai erred in assuming jurisdiction u/s 263 and in passing the impugned order u/s 263, setting aside the assessment made u/s 143(3) after detailed scrutiny.
2. In the facts of the case it is respectfully submitted that the assessment in reference was neither erroneous nor prejudicial to the interest of revenue and the learned AO had examined in detail the eligibility of the appellant to exemption u/s 54/54F.
3. In the facts of the case the impugned order u/s 263 is not a good order in law and may kindly be set aside/annulled. - Dr. Mansukh D. Unadkat
Brief facts of the case are that the assessee is an individual, filed his
return of income for relevant AY on 25.10.2008. The assessment was completed on 19.08.2008 declaring income of Rs. 1,388/-. The assessment was completed on 28.12.2010 under section 143(3) of the Act accepting the return income . Subsequently, the assessment order was set-aside by ld. CIT(A) holding that the assessment order passed by AO is erroneous and prejudicial to the interest of revenue as the AO erroneously allowed the deduction under section 54F for Rs. 37,67,938/-
. A show-cause notice under section 263 was served upon the assessee but the assessee despite service of notice, neither appeared nor contested.
The CIT passed the following order:
“3. From the perusal of the records, it is ascertained that assessee transferred or sold the rights of the property and not the residential unit. For availing the benefit u/s 54 of the IT Act 1961, assessee ought to have sold or transferred the residential unit. The conditions prescribed under section 54 of the I.T Act 1961 for availing benefit of deduction is that, there should be transfer of a long term capital asset, being buildings or lands appurtenant thereto, and being a residential house. However, in the assessee's case, what is transferred is the right over the property, as he had never occupied or taken possession of the said flat for residential purpose. In view of the same, assessee is not entitled to claim deduction u/s 54 of the I.T Act 1961.
4. Further, assessee is also not entitled to claim deduction v/s 54F of the I.T Act 1961. The condition for availing deduction under section 54F of the I.T Act 1961, is that assessee should not own more than one residential house, other than the new asset, on the date of transfer of original asset. In the instant case the A.O. has failed to ascertain whether the assessee owns more than one property and the conditions for availing deduction u/s. 54F are fulfilled, by making proper enquiry. In view of this allowing deduction u/s. 54F of the I.T. Act is erroneous.
5. The Assessing Officer therefore, appeared to have erroneously allowed deduction u/s.54/54F of Rs.37,67,938/-. Hence, the assessment order passed u/s.143 (3) appeared erroneous in so far as it was prejudicial to the interest of revenue.
- Dr. Mansukh D. Unadkat
6. A show cause notice u/s.263 was issued to the assessee on 11.10.2012 proposing that the assessment order passed u/s.143(3) of the I.T. Act dated 28.12.2010 be revised u/s.263 of the Income Tax Act, 1961, which was served by postal authorities on 19.10.2012.
In response to the show cause notice dated 11.10.2012 u/s.263 of the I.T. Act, neither assessee attended the hearing on 18.10.2012 nor filed any written submission in this matter, As the notice dated 11.10.2012 was served on 19.10.2012 which was beyond the date of hearing on 18.10.2012, another showcause notice was issued fixing the hearing on 02.01.2013. The said notice was served on assessee by affixture on 20.12.2012 at the address available on records i.e. 37, Amar Jeevan, St. Martin Road, Bandra(W), Mumbai as well as on the new address i.e. B/23, .2nd Floor, Seema Apartment, Bellock Road. Band Stand, Bandra(W), Mumbai- 400 050. However, again the assessee did not attend the hearing nor filed any written submission. The notice dated 11.10.2012 although received beyond the date fixed for hearing was not responded to even subsequent to the date of hearing. Hence, it is presumed that the assessee has nothing to say in this matter and accordingly, the issue raised in this proceedings u/s. 263 of the I.T. Act is decided on the basis of details available on record. 8. Upon examination of the assessment order and the relevant record, it is observed that the assessee is not entitled to claim deduction u/s 54 of the I.T Act 1961. For the sake of brevity, section 54 of the I.T Act 1961 is reproduced as under:
Section 54.- Subject to the provisions of sub section (2) where in the case of an assessee being an individual or a Hindu undivided family, the capital gains arisen from the transfer of a tong term capital- asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head (Income from house property' (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 a residential house, then] instead of the capital gain being charged to income tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that to say ... (Emphasis supplied) Thus, presence of the word "being" in section 54 restricts the benefit of deduction to transfer of buildings or lands appurtenant thereto, and being a residential house and not to transfer of any capital asset such as right in a property. In the assessee's case, what is transferred is the right over the property as he has never occupied or taken possession of the said flat for residential purpose. In view of the same, assessee is not entitled to claim deduction u/s 54 of the I.T Act 1961 as the assessee had transferred the rights of the property and net the residential unit. The assessee had never occupied or taken possession of the said flat for residential purpose. Further, deduction u/s 54F of the I.T Act 1961 has also been erronouse1y allowed as no enquiry has been made to ascertain that conditions 3 - Dr. Mansukh D. Unadkat prescribed for availing benefits u/s 54F are fulfilled and whether the assessee owns more than one property other than the new assets, on the date of transfer of original asset. Accordingly, the assessee is neither entitled to claim deduction u/s 54 of the I.T Act nor has been found to fulfill conditions for deduction u/s 54F of the I.T. Act.
In view of the above, I am satisfied that the A.O. has allowed the deduction without ascertaining whether the assessee is entitled to deduction u/s 54 of the I.T Act or u/s 54F of the I.T Act. Therefore, the order of the Assessing Officer is erroneous in so far as it is prejudicial to the interest of revenue which can be set aside as I am satisfied that the deduction u/s. 54/54F of the I.T Act has been allowed erroneously.
Under these circumstances, when the assessing officer erroneously accepted the assessee's claim, that would be a ground for the CIT to interfere under section 263 of the Income Tax Act. The assessment order dated 28.12.2010 passed u/s.143(3) of the Income Tax Act is erroneous in so far as it is prejudicial to the interest of revenue and it is to be revised u/s. 263 of the Income Tax Act.
In view of the facts and circumstances of the case and the above discussion, I am of the considered opinion that the impugned order dated 28.12.2010 passed by the ITO-19(3)(4), Mumbai is erroneous and prejudicial to the interest of revenue as the Assessing Officer erroneously allowed the deduction u/s.54/54F of Rs.37,67,938/-. Hence, the order passed u/s 143(3) of the I.T Act on 28.12.2010 for the A.Y.2008-09 is hereby set aside on the issue of disallowance of the deduction u/s.54/54F of the I.T. Act claimed by the assessee. The Assessing Officer is directed to pass a fresh order regarding allowability of the deduction u/s.54/54F of the I.T. Act, after affording sufficient opportunity to the assessee and conducting proper enquiries.
2. The ld CIT directed the AO to pass the order afresh after giving sufficient opportunity regarding the allowability of deduction under section 54F, hence, aggrieved by the order of ld. CIT, the assessee has filed the present appeal before us.
We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee argued that during the assessment proceeding, the AO issued notice under section 142(1) dated 01.07.2010. The AO made the sufficient enquiries. The assessee furnished 4 Dr. Mansukh D. Unadkat all the details with regard to the queries raised by AO. The ld. AR of the assessee further argued that the AO during the assessment further raised enquiry with regard to the AIR information about the purchases of two flats. The assessee furnished her reply to the AO explaining the fact that he has purchased two flat in Seema Apartment, B-Block, 2nd Floor, Bullock Road, Band Stand, Bandra vide agreement dated 08.02.2008. The consideration on which flat was Rs. 1,26,00,000/- for each flat. 3rd transaction in AIR represent the sale of flat No. 2702 in Oberoi Woods, Goregaon (W), for a consideration of Rs. 1,04,50,000/-. This Flat was purchased in 2004-05. This flat was sold by agreement dated 12.12.2007, the assessee was a conferment party. Thus, the assessee has explained the flat that the capital gain earned on sale of flat in Oberoi Woods and claimed exemption under section 54/54F as the same was invested in purchase of flats in Seema Apartment. Thus, after satisfaction of AO, the assessment was passed under section 143(3). On the other hand, the ld. DR for the Revenue, the order of ld. CIT. It was argued that the AO has not raised any query regarding the claim of exemption under section 54F. The order is silent about the queries/questionnaire raised by AO. Thus, the order passed by AO was erroneous and prejudicial to the interest of Revenue.
We have considered the rival submission of the parties and have gone through the orders of authorities below. The perusal of assessment order reveals that the AO has not raised any query with regard to exemption 5 ITA No. 4249/M/2013- Dr. Mansukh D. Unadkat claimed under section 54F of the Act. The assessee has placed on record the copy of notice under section 142(1). In the entire notice there is no reference about the queries with regard to claim of exemption under section 54F. The assessing officer is a quasi judicial authority and his order is amenable to appeal or revision. If any finding of the assessing officer goes against the assessee, the order is amenable to statutory appeal provided under the Act.
However, if the order is prejudicial to the interest of revenue, the remedy of appeal is not available to the revenue. Therefore section 263 is enacted to empower the Commissioner to exercise the power to invoke jurisdiction conferred under section 263 of the Act. Therefore, the order passed by assessing officer must be speaking and substantial. If the order passed by assessing officer is subversive of the administration of revenue, it must be regarded as erroneous and prejudicial to the interest of revenue. And the revenue is bound to suffer. In our considered view the order is prejudicial to the interest of revenue as per the provision of section 263; 1. If the order sought to be revised was passed without considering and referring the facts or contains error of facts or law, on the face of it, 2. If the order is based on incorrect assumption of law or facts or allowed the relief silently, or 3. If the order passed by assessing officer in a mechanical way thereby accept what the assessee has stated while furnishing the return of income and failed to make requisite enquiries or does not examine the genuineness or legitimacy of the claim which may be called for as per the facts of the case.
In the present case the assessing officer mechanically accepted the claim / exemption of LTCG without raising any quarry. Further, the assessing officer without calling and examining the documentary evidences and Dr. Mansukh D. Unadkat verifying various dates related with the acquisition of the asset/ flat and the sale of the asset allowed the claim of the assessee. The ld. AR for the assessee argued that the assessing officer had considered the relevant facts and the material while passing the assessment order. According to ld AR for the assessee, the mare fact that assessment order passed by assessing officer was short is neither mean failure on his part in not examining the matter carefully nor would be erroneous so long as view taken by him was possible view. In our view the submission of ld. AR for the assessee is not correct and must fail for the reasons we have explained hereinabove.
In Malabar Industrial Co. Ltd Vs CIT (243 ITR 83) the Hon’ble Apex Court held;
There can be no doubt that the provision cannot be invoked to correct each and every type of mistake 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 falls the order passed without applying the principles of natural justice without application of mind.
7. In the present case the order sought to be revived reflects that it was passed in mechanical way and without application of mind by assessing officer.
Thus, in view of the forgoing reasons the assessment order was passed without making requisite inquiries will satisfy the condition of the order being erroneous and prejudicial to the interest of revenue. In the result the grounds of appeal raised by the assessee is dismissed. We have noted that 7 Dr. Mansukh D. Unadkat despite setting-aside the order of assessment. The AO was directed to pass the order after giving sufficient opportunity to the assessee. Thus, we do not find any illegality or infirmity in the order passed by CIT.
8. In the result, appeal of the assessee is dismissed.
9. Order pronounced in the open court on 5th day of January 2018.