HINDUSTAN SALES INDUSTRIAL CORPORATION,JAIPUR vs. PRINCIPAL COMMISSIONER OF INCOME TAX-1, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 94/JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2016-17 cuke Hindustan Sales Industrial Corporation The Pr. CIT Vs. 1193, Churukon Ka Rasta, SMS Highway Jaipur-1 Jaipur – 302 001 Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAAFH 9961 P vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@Assessee by : Shri Rajeev Sogani, CA & Shri Rohan Sogani, CA jktLo dh vksj ls@Revenue by: Shri Sanjay Dhariwal, CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 28/09/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/10/2022 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the assessee is directed against order of the learned Principal Commissioner of Income Tax, Jaipur -1 [ here in after referred as ld. PCIT] dated 30-03-2021 for the assessment year 2016-17 which in turn arise from the order of the assessing officer passed u/s. 143(3) of the Income Tax Act [ here in after referred to as `Act’ ] on 18.10.2018.

2 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

ground of appeals:

‘’1. In the facts and circumstances of the facts and in law, the ld. PCIT has erred in exercising the revisionary powers buy passing the order u/s 263 of I.T. Act and setting aside the order passed u/s 143(3) dated 18-10-2018. The action of the ld. PCIT is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order passed u/s 263. 2. In the facts and circumstances of the facts and in law, the ld. PCIT has erred in holding that the order passed u/s 143(3) dated 18-10-2018 is erroneous and prejudicial to the interest of the Revenue. The action of the ld. PCIT is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order passed u/s 263 and holding the order passed u/s 143(3) dated 18-10-2018 as not erroneous and prejudicial to the interest of Revenue. 3. The assessee craves it right to add, amend, or alter any of the grounds on or before the hearing.

289 days in filing the appeal for which the ld. AR of the assessee filed an

application dated 12-03-2022- for condonation of delay by taking the resort

of Hon’ble Supreme Court order dated 10 JAN 2022 (Civil Original

Jurisdiction – MA No. 21 of 2022 in MA No. 665 of 2021 in Suo Motu Writ

Petition (C) No. 3 of 2020 – In Re: Cognizance for Extension of Limitation

due to outbreak of COVID-19. The ld. AR further submitted that under

these circumstances the period between 15-03-2020 to 28-02-2022 was to

be excluded and the period was to be reckoned from 01-03-2022 and also

the appeal could be filed within 90 days from 01-03-2022 i.e. on or before

3 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR 30-05-2022 whereas in the cases under consideration, the appeal has

been filed on 12-03-2022 accordingly the appeal is within the time of

extended period of limitation as prescribed by the Hon’ble Apex Court

(supra). Hence, it is requested by the ld. AR of the assessee to condone

the delay, if so.

3.1 On the other hand, the ld. DR objected to such delay but left the

matter on the Bench to consider it as deem fit and proper in the case

considering the merits as pleaded in the petition moved by the assessee.

3.2 After hearing both the parties and perusing the materials available on

record in the petition moved by the assessee relying on the decision of

Hon’ble Apex Court 10-01-2022 (supra), the delay so made by the

assessee is condoned. Thus, application for condonation of delay is

allowed.

are that the assessee filed its return of income (e-return) on 23-07-2016

declaring total income at Rs.22,96,01,790/- for the year under

consideration. The case of the assessee was selected for scrutiny

4 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR assessment through CASS under ‘’Limited Scrutiny’’ on return of income

filed. Accordingly, notice u/s 143(2) of the Act was issued on 4-07-2017

through ITBA-Portal which was served upon the assessee, fixing the case

for hearing on 25-07-2017 but the assessee filed adjournment letter on 25-

07-2017. In this case, the AO noted that the assessee is mainly earning

income from Capital gain and interest income during the year under

consideration. It is also noted that during the assessment proceedings,

notices u/s 142(1) of the Act along with questionnaire had been issued on

11-07-2018, 22-08-2018,11-09-2018 & 5-09-2018 through ITBA-Portal

against which the assessee filed its submission through ITBA-Portal on 3-

10-2018 & 13-10-2018 and the AO has taken them on his record. Further,

the AO during the course of assessment proceedings noticed that the

assessee firm sold a property situated at E-101, Road No. 8, VKI Area,

Jaipur having sale consideration of Rs.24,06,38,500/- to M/s. Prem Motors

Pvt. Ltd. and computed LTCG of Rs.22,94,16,850/-. The AO noted that in

the computation of capital gain, the assessee debited transfer expenses,

indexed cost of acquisition and indexed cost of improvement. The AO thus

noted that the assessee furnished documentary evidences of all such

expenses except documentary evidences of indexed cost of construction

expenditure on account of RIICO norms of Rs.1,13,175/- for which the AO

5 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR issued notice u/s 142(1) of the Act on 5-10-2018 demanding the

documentary evidences for the aforesaid expenses. In response to the

notice, the assessee filed the reply on 13-10-2018 narrating it as under:-

‘’Out of total cost of construction, the assessee firm has paid Rs.1,13,175/- for construction expenditure on account of RIICO norms. Copy of ledger account evidencing the same has already been submitted for your verification.’’

Taking into consideration the present facts and circumstances of the case,

the AO observed that the assessee has simply submitted the ledger

account of the construction expenses on account of RIICO norms of

Rs.1,13,175/- but the assessee did not submit any bills/vouchers and also

did not furnish the bank statement from where the amount of expenses was

debited. He further observed that the primary onus lies with the assessee

to submit the proof of genuineness of transaction of expenses of

construction but the assessee failed to do so and for want of no proof by

the assessee as to the genuineness of the transaction, the AO disallowed

the indexed cost of construction expenses amounting to Rs.1,13,175/- and

added the same to the income of the assessee and the assessment was

thus completed by the assessing officer under section 143(3) of the Act.

6 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

order dated 18-10-2018, a show cause notice u/s 263 of the Act was issued

on 16-03-2021 to the assessee by the ld. PCIT, Jaipur -1 observing as

under:-

‘’Sub: - Show cause Notice u/s 263 of the IT. Act 1961 for AY 2016-17 AAAFH9961P-regarding On examination of assessment record for A.Y. 2016-17 it has been noticed that assessment in your case was completed u/s 143(3) of the I.T. Act, 1961 (in short 'the Act) on 18.10.2018 at income of Rs. 22,97,14,970/-. The case was selected for limited scrutiny that included whether capital gain/loss is genuine and has been correctly shown in return of income as one of the reason. 2. It is seen on the perusal of assessment record that you have shown long term capital gain of Rs. 22,94,16,850/- after claiming indexed cost amounting to Rs. 97,71,650/-. The following points emerged there from: 1. You have claimed FMV of land as on 01.04.1981 at Rs. 59,910/-, the basis of estimation thereof is not on record. 2. You have claimed indexation from F.Yr. 1981-82 on book value of building taken at Rs. 1,75,255/-. It is seen that the value of the said building has been taken as on 31.03.2005 whereas indexation has been applied from the year 1981-82. 3. You have claimed indexed cost of interest amounting to Rs. 1,69,335/- from F.Yr. 2007-08 (building No. 3), Rs. 2,04,754 from F.Yr. 2008-09 (building No. 04),Rs. 1,28,106 from F.Yr. 2009-10 (Building NO. 05), Rs.66,863/- from F.Yr. 2010-11 (building NO. 6). There are no documentary evidences about the loans taken by you and so utilized towards on which these interest payments have been made. There is no copy of bank statement or interest certificate on record. There are no supporting documents about the construction activity bills & vouchers etc. and the payments made. It is also seen from the ledger account of Shop under Construction that there is an opening balance as on 01.04.1981 of 12,49,882/- and thereafter from 2004 to 2005 there are only cash payments against the vouchers. 4. The shop under construction ledger shows opening balance of Rs. 12,49,882/-as on 01.04.1981. However, you have claimed indexation

7 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

from F.Yr. 2000-01. It is not clear as to in which period the construction was actually under taken. AO allowed the indexed cost without examining the claim on the basis of proper evidences. AO has disallowed only Rs. 1,13,175/- against the claim of Rs. 97,71,650/-. Besides this, AO made no efforts to ascertain whether the building portion of asset sold was a depreciable asset or not, AO failed to obtain the bifurcation of sales pertaining to building and land and if the factory premises was the depreciable asset it should have been subjected to short term capital gain. 3. In view of the above, it appears that the assessment order passed u/s 143(3)of the I.T. act 1961 in your case for A.Y. 2016-17 on 18-10-2018 is erroneous in so far as it is prejudicial to the interest of the revenue. 4. I, accordingly, propose to modify the order on the above issue under the power vested with me u/s 263 of the I.T. Act, 1961. You are, hereby, allowed an opportunity to show cause as to why the order passed u/s 143(3) on 18-10-2018 may not be revised u/s 263 of the I.T. Act 1961 in a suitable manner. 5. Therefore, you are hereby given an opportunity to file your response in this regard by 24.03.2021 electronically. Please note that in case no reply is received from you by 24.03.2021, the matter will be decided on merits on the basis of material available on record without any further communication in this regard.’’

Jaipur-1, the assessee vide his letter dated 25th March, 2021 submitted the

following detailed reply praying therein that the order of assessment cannot

be termed as erroneous and prejudicial to the interest of the Revenue and

revisional jurisdiction u/s 263 cannot be invoked. There can be no question

of cancelling the assessment order or directing any fresh assessment.

Hence, it is requested to drop the proceedings initiated by issue of show

cause notice.

8 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

‘’25th March, 2021 Pr. Commissioner of Income Tax -1, Jaipur Hindustan Sales Industrial Corporation- AY 2016-17 PAN AAAFH9961P Proceeding u/s 263 Hon'ble Madam, The assessee is in receipt of your Notice No ITBAREV/F/REV1/2020 21/1031521041(1) dated 16 March, 2021 regarding assumption of jurisdiction u/s 263. The said notice identifies following errors: 1. You have claimed FMV of land as on 01.04.1981 at Rs. 59,910/- the basis of estimation thereof is not on record. 2. You have claimed indexation from F Y. 1981-82 on book value of building taken at Rs. 1,75,255/ It is seen that the value of the said building has been taken as on 31.03.2005 whereas indexation has been applied from the year 1981-82 3. AO made no efforts to ascertain whether the building portion of asset sold was a depreciable asset or not. AO failed to obtain the bifurcation of sale pertaining to building and land and if the factory premise was the depreciable asset it should have been subjected to Short Term Capital Gain. 4. The shop under construction ledger shows opening balance of Rs. 12,49,882/- as on 01.04 1981. However, you have claimed indexation from F.Y. 2000-0. It is not clear as to in which period the construction was actually under taken. 5 There are no supporting documents viz activity bills and vouchers etc and the payments made for the shop construction (of Rs 6,48,172/-). It is also seen from the ledger account of Shop under Construction that there is an opening balance as on 01.04.1981 of 12,49,882/- and thereafter from 2004 to 2005 there are only cash payments against the vouchers 6. You have claimed indexed cost of interest amounting to Rs. 1,69,335/- for FY 2007-08 Rs. 2,04,754 for FY 2008- 09, Rs 1,28,106 for FY 2009-10 and Rs. 66,863/- for FY 2010-11 aggregating Rs 5,69,058/-. There are no documentary evidences about the loans taken by you and so utilized towards construction on which these interest payments have been made. There is no copy of bank statement or interest certificate on record. Our humble submissions in respect of all the above issues are as under: 1. FMV of land of Rs. 59,910/- as on 01/04/1981. During the course of assessment proceedings, vide letter dated 3 October, 2018 (P.B.: 6 to 8), a submission was made regarding the basis of estimation. It was submitted that Fair Market Value as on 01/04/1981 is taken @ Rs. 15 per sq. mtr. It was also explained that the value is very meager and most reasonable. Looking to the meager valuation adopted, the LD AO, after applying his mind, accepted the said valuation to be fair. The allegation that no basis of estimation is available on record is apparently incorrect. 2. Indexation of Building of Rs. 1,75,255/- from F.Y. 1981-82 It is alleged in the notice that value of the building is taken as on 31.03.2005, whereas, indexation is claimed from F.Y. 1981-82.

9 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

During the course of assessment proceedings, sale deed of the property was submitted (P.B.: 9 to 26). From the said sale deed, it was evident that the property was purchased in the year 1972. Accordingly, the assessee firm was eligible for indexation from FY 1981-82 in term of the provisions of section 55(2)(b). The reference of 31.03.2005 in your notice is misplaced. During assessment proceeding vide submission dated 3 October, 2018 (P.B.: 6 to 8), it was submitted that the value appearing in the Balance Sheet as on 31.03.2005 (P.B. : 46 to 48) was Rs. 1,57,730/- wherein one year depreciation amounting to Rs 17,525/- was reduced. It was also submitted that AY 2005-06 was assessed u/s 143(3) and copy of the assessment order was submitted. Through these evidences, it was established that the cost of building prior to 1981-82 was Rs 1,75,255. Ld. AO duly appreciated all these evidences, took judicious view of the matter. and accepted the value as on 01.04.1981 to be Rs. 1.75.255. There is no contradiction as alleged in your notice. Moreover, there is no error in the order as the Id. AO after obtaining and examining all the relevant evidences, accepted the claim of the assessee in this regard. 3. STCG on Sale of Building It is submitted that the sale consideration of property was pertaining to land only as the building was very old and of no use to the buyer. The buyer did not consider it of any value for arriving at the sale consideration. It is relevant to note here that the buyer after purchasing the property, completely dismantled the old factory building. In this view, of the matter, there was no portion of any Short Term Capital Gain on building, which fact was duly appreciated by the Id AO during the assessment proceeding. 4. Shop under Construction - Indexation from F.Y. 2000-01 The shop was constructed in the FY. 2000-01. This fact was conveyed to Id. AO vide our submission dated 3 October, 2018 (P.B.: 6 to 8). The relevant portion of submission is reproduced hereunder.

Construction of 12,49,882 Shop was constructed in FY Building 2000-01 for Rs. 12,49,882. Further construction was done in Paid to RIICO and 6,48,172 construction activity FY 2004-05 for Rs. 6,48,172 Total Cost of Rs. 18,98,054 (12,49,882+6,48,172) is evidenced from Balance Sheet as at 31.03.2005

Thus, the Id. AO has rightly allowed the indexation from FY 2000-01. It is humbly submitted that there is no error in the order of Id. AO, nor any prejudice is caused to the revenue on account of allowing the indexation of shop under construction amounting to Rs. 12.49,882 from FY 2000-01

10 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

Payment of Interest Amount Rs. Interest capitalized amount on Loan evidenced from Sheet as at 31.03.2014 and ledger account of shop FY 2007-08 1,69,335 under construction (submitted in earlier FY 2008-09 2,04,754 submission) copy of ITR acknowledgement FY 2009-10 1,28,106 and computation for the A.Y. 2014-15 are F.Y. 2010-11 66,863 enclosed

So far as payment of above interest is concerned, the same was duly reflected in the Balance Sheet as on 31.03.2014 (P.B.: 29 to 30) The Balance Sheet & ITR for AY 2014-15 and ledger accounts of respective years were filed vide submission dated 28 July, 2018 (P.B.: 27 to 28) Ld. AO duly evaluated all the above evidence in respect of interest payments, Ld AO found that these details were already on the record of the department through the return of income filed for AY 2014-15 on 28.07 2014 Since filing of return for AY 2014-15 was much prior to the date of sale of the asset, the ld. AO in his judicial wisdom, accepted the same. Without prejudice to above, the bank statement of loan account in the name of partner for FY 2007-08, FY 2008-09. FY 2009-10 and FY 2010-11 is enclosed herewith (P.B.: 33 to 45). In section 263 proceeding it is expected to take into consideration all material available on record including the material placed on record during these proceedings.

11 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

Jaipur-1 held that the order passed by the AO was erroneous and

prejudicial to the interests of revenue. The AO completed the assessment

without application of mind. The order passed by the AO on 18.10.2018,

thus, deserves to be set aside to be made afresh. The detailed findings of

the ld. Pr.CIT in the case of the assessee is reproduced as under:-

12 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

‘’5. I have considered the submissions filed by the AR and facts available on record. With regard to indexation from the year 1981-82 on the book value of building at Rs. 1,75,255/- as on 31.03.2005, AR has submitted that as per Balance Sheet the value as on 31.03.2005 was Rs. 1,57,730/- after reducing depreciation of Rs. 17,525/- thus it was established by the AR that cost of building prior to 1981-82 was Rs. 1,75,285/- is devoid of any basis/justification as by no stretch the figure of 1,57,730/- as appearing in the Balance Sheet as on 31.03.2005 can be extrapolated to the figure of Rs. 1,75,255/-as on 01.04.1981. As regards claim of indexed cost of interest amounting to Rs. 1,69,335/- from F.Yr. 2007-08 (building No. 3), Rs. 2,04,754 from FY 2008-09 (building No 04) Rs. 1,28,106 from F.Yr. 2009-10 (Building NO. 05). Rs.66,863/- from FY 2010-11 (building NO. 6). AR has submitted that the interest was capitalized and the same was duly reflected in the Balance Sheet as on 31.03.2014 is not acceptable. The Claim that interest was related to a loan which was taken for creation of capital asset is not born out from records. During the assessment proceedings only the ledger account of shop under construction in which interest was, capitalized through JV. There is no Balance Sheet of the Firm on record that reflect such borrowings and there is no evidence on record to show that any loan was taken by the firm and that loan was utilized for construction of the property. AR has submitted copies of SBI A/c No. 51022307563 which is in the name of some "Vijay Vijay". The description of the A/c is "BR OD PER MORTG OF PROP NOV 05 and no where it is established that the said loan belonged to the assessee and was utilized towards construction of the property. Moreover, the ledger account of "shop under construction reflects all cash payments and interest capitalization through journal entry. Thus, assessees' explanation with regard to claim of indexed cost of interest is not tenable and without any foundation. The ledger account of shop under construction lacks credibility and does not support the claim of the assessee. Assessee has claimed indexed cost of building No. 01 on the amount of Rs. 12,49,882/- from F.Yr. 2000-01 on building No. 02 on the amount of Rs. 6,48,172/ from F.Yr. 2004-05. It is seen that the amount Rs. 12,49,882/- is the opening balance as on 01.04.1981 of shop under construction ledger A/c. For building No. 02 indexation from 2004-05 has been claimed on amount of Rs. 6,48,172/-. From the ledger A/c of 'shop under construction', it is seen that all the expenses are incurred in cash through various vouchers and there is no supporting evidences as to what these payments were made for. The claim of indexed cost with respect to this expenditure is not supported by any credible documentary evidence. AR has submitted that FMV of land as on 01.04.1981 was taken @ Rs. 15 per sq.metre which was very reasonable However, it is seen that it is based on estimation and not on the basis of any valuation by registered valuer or circle rate etc. As regards issue of short term capital gain AR has submitted that the entire consideration was pertaining to land and the building was very old and of no use to the buyer. On one hand AR is claiming indexed cost of Rs. 97,71,650/- which is mostly against the building barring Rs. 6,47,627/- and 12,95,416/- which are claimed as indexed cost of land, on the

13 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

other hand the building is claimed to be insignificant and no value out of sale consideration of Rs. 24,06,38,500/- is assignable towards building, which is not acceptable. it is evident from the site plan annexed to the sale deed that a building was in existence as part of the property sold by the assessee, In view of the above it is evident that AO did not carry out any verification with regard to the indexed cost of building as well as indexed cost of interest claimed by the assessee while computing capital gain. The evidences submitted in the course of present proceedings as well as before the AO do not support the claim of assessee and rather create more suspicion than clarity. AO also failed to ascertain, the element of short term capital gain involved therein against the transfer of depreciable asset. The order passed by the AO was without any application of mind and AO failed to bring out the facts properly as well as failed to apply the provisions of law correctly which is evident from above. 6. In view of the above, I hold that the order passed by the AO was erroneous and prejudicial to the interests of revenue AO completed the assessment without application of mind. The order passed by the AO on 18.10.2018, thus, deserves to be set aside to be made afresh in the light of observations given in paras 4 above. While holding so, I also place reliance on judgment of Hon'ble Supreme Court given in the case of Deniel Merchants P. Ltd. & others vs ITO in appeal No. 2396/2017 dated 10.04.2017. The Hon'ble SC has held as follows in this case: "In all these cases, we find that the Commissioner of Income Tax had passed an order under Section 263 of the Income Tax Act, 1961 with the observations that the Assessing Officer did not make any proper inquiry while making the assessment and accepting the explanation of the assessee(s) insofar as receipt of share application money is concemed. On that basis the Commissioner of Income Tax had, after setting aside the order of the Assessing Officer, simply directed the Assessing Officer to carry thorough and detailed Inquiry. It is this order which is uphold by the High Court. We see no reason to interfere with the order of the High Court. The Special Leave Petitions are dismissed." Reliance has been placed on the following judicial pronouncements in this regard: 1. In the case of M/s Gee Vee Enterprises 99 ITR 375 (Delhi High Court)[1995]. It was held that the Assessing officer (AO) is not only an adjudicator but also an investigator, and failure of the AO to conduct the required inquiring and accepting the statement of the assessee without due verification renders the order erroneous as well as prejudicial to the interests of the revenue. Absence of proper inquiring by the AO would render the assessment order erroneous as well as prejudicial to the interest of revenue as held in following cases: Jagdish Kumar Gulati vs CIT 269 ITR 71 (Allahabad)

14 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

Duggal & Co. 220 ITR 456 (Delhi) K. A. Rama Swami Chettiar vs CIT 220 ITR 657 (Mad) (b) Hon'ble Supreme Court in the case of Tara Devi Agarwal vs. CIT [(1973) 88 ITR 323] in which Hon'ble court stated that where a stereotype order is passed, which simply accepts what the assessee has said in the return and fails to make enquiries which are called for in the circumstances of the case, the commissioner is justified in holding that the order is erroneous and prejudicial to the interests of the revenue. 7. In view of the above hold that the order passed by the AO was erroneous in so far as it is prejudicial to the interests of revenue. The assessment order passed by the AO on 18.10.2018 is, therefore set aside to be made afresh after giving an opportunity of being heard to the assessee.’’

the ld. Pr. CIT has erred to pass the order u/s 263 of the Act and directed

the AO that order passed by him is erroneous in so far as it is prejudicial to

the interest revenue and thus the order dated 18-10-2018 is set aside and

to be made afresh after giving an opportunity of being heard to the

assessee. The ld. AR of the assessee has filed the detailed written

submission controverting the findings of the ld. Pr. CIT as under:-

‘’1. The assessee firm M/s Hindustan Sales Industrial Corporation filed its return of income (e-return) on 23/7/2016 declaring total income at Rs. 22,96,01,79/-. The assessment was completed vide order under section 143(3) dated 18/10/2018 at a total income of Rs. 22,97,14,97/-. 2. The said order was set aside by ld. PCIT assuming jurisdiction under section 263 vide order dated 30/3/2021. The present appeal is against the said order u/s 263. 3. The case of the assessee was picked up for limited scrutiny identifying following issues; (i) Whether the value of consideration for computation of capital gains has been correctly shown in the return of income. (ii) Whether capital gain/loss is genuine and has been correctly shown in the return of income.

15 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

16 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR

17 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR "Jurisdiction under section 263 cannot be invoked for making short enquiries or to go into the process of assessment again and again merely on the basis that more enquiry ought to have been conducted to find something."

Pr.CIT, Jaipur -1 and submitted that the order of the AO dated 18-10-2018

is erroneous and prejudicial to the interest of revenue. He further submitted

that if the appeal of the assessee is allowed then the purpose of section

263 will be defeated. In the decision relied upon by the assessee where the

amount involved was very much small where in this case the amount of

claim involved is around 90 lacs. So, the decision cited are thus

differentiable on facts of the case. The assessee has sold the property

along with the land and building so the sale is slump sales and the capital

gain would be short term and not long-term capital gain as claimed by the

assessee. The assessee them self-submitted that for one year there was a

claim for depreciation and thus at least for the part of consideration the sale

is short term capital gain is chargeable and not as long-term capital gain as

accepted by the ld. AO. He has not seen this aspect of the case though the

case is for limited scrutiny. The AO did not seek the complete details from

the assessee and sufficient evidence before relying on the version of the

assessee he has not examined the evidences on account of cost of

acquisition is not examined by the ld. AO and thus the order passed by the

18 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR AO is erroneous and prejudicial to the interest of the revenue. The AO must

ask the question so as the claim of cost of acquisition which he has not

asked on claim as on 01-04.1981 and cost of construction both the claim

has been allowed without taking proper evidence on record. In case of

construction, he has just obtained ledger account and has allowed the

claim to the assessee. Even the interest has been allowed as cost even

though the loan was taken after the construction has been completed and

the purpose of the capitalization of loan after the construction is not called

for and placed on record. So, these issues are not examined by the AO in

the assessment proceeding and therefore, he supported the order of the

PCIT in the proceeding u/s. 263.

details were very well examined by the AO and placed on record merely

the same is not discussed does not hold the order prejudicial to the interest

of the revenue. As regards the claim of depreciation the same is added

back while computing the capital gain. The building was old and minor

construction was of no use and therefore, the AO has considered it being

very minor amount. Relying on the judgement of Hon’ble Madras High

Court the ld. AR of the assessee submitted that deprecation asset along is

19 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR not transferred here the major part of asset is appreciation of land price and

not the building and therefore, ld. AO has appreciated these facts and

considered this aspect and when two view are possible, a plausible view

cannot be a subjected matter of 263. The interest is capitalized and

considered in the books of account audited year by year and allowed by the

department and auditor as rightly capitalized. The same cannot be not

considered as not part of the cost merely the loan has been taken after

completion of the construction there are reasons to avail the loan to repay

the private finance taken by the assessee and the same is also rightly

allowed by the AO and here also a plausible view is taken by the ld. AO.

on record. Brief facts of the case are that the assessee firm filed its return

of income electronically on 23-07-2016 declaring income at

Rs.22,96,01,790/- for the year under consideration. The case of the

assessee was selected through CASS under ‘’Limited Scrutiny’’ on return

of income. Accordingly, the notice u/s 143(2) of the Act issued on 4-07-

2017 which was served upon the assessee fixing the case for hearing on

25-07-2017. However, the assessee, in response to notice filed the

adjournment letter dated 25-07-2017. It is noted from the records that the

20 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR assessee is mainly earning income from Capital Gain and Interest Income

during the year under consideration. In this case, the AO during the

assessment proceedings noticed that the assessee firm had sold a

property situated at E-101, Road No.8, VKI Area, Jaipur having sale

consideration of Rs.24,06,38,500/- to M/s. Prem Motors Pvt. Ltd. and

computed LTCG of Rs.22,94,16,850/-. The AO thus noted that in the

computation of capital gain, the assessee debited transfer expenses,

indexed cost of acquisition and indexed cost of improvement. Before the

AO, the assessee furnished documentary evidences of all such expenses

except the evidences relating indexed cost of construction expenditure on

account of RIICO norms of Rs.1,13,175/-. In this regard, notice u/s 142(1)

of the Act was issued to the assessee on 5-10-2018 specially asking the

documentary evidences for the aforesaid expenses for which the assessee

filed the submission on 13-10-2018 narrating therein as under:-

‘’Out of total cost of construction, the assessee firm has paid Rs.1,13,175/- for construction expenditure on account of RIICO norms. Copy of ledger account evidencing the same has already been submitted for your verification.’’ 12. The AO took into consideration the submissions of the assessee but

found that the assessee could not submit the proof of genuineness of

transactions relating to indexed cost of expenses of construction of

Rs.1,13,175/- which he disallowed and added the same to the total income

21 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR of the assessee for the year under consideration and made the assessee

ineligible to get deduction of indexed cost of improvement as per provisions

of Section 48 of the Act. Against the assessment order dated 18-10-2018, a

show cause notice u/s 263 of the Act was issued on 16-03-2021 to the

assessee by the ld. PCIT which was replied by the assessee vide letter

dated 25-03-2021 (PB-56-62) but he did not find favour. However, the ld.

Pr. CIT, Jaipur 1 held that the order passed by the AO was erroneous in so

far as it is prejudicial to the interest of revenue and thus set aside the

assessment order dated 18-10-2018. Basically, it is noted that issues

raised by the ld. Pr. CIT(A) in his show cause notice dated 16-03-2021 are

as under:-

(i) FMV of land as on 1/4/1981 is INR 59,910. (ii) Indexation of book value of building. (iii) Interest forming cost of building. (iv) Indexation of shop - INR 12,49,882. 13. From the record, it is noted that the fair market value of the land as

on 01-04-1981 was taken @ Rs.15/- per Sq. Meter (15 x 3994 =

Rs.59,910/-). It is also noted that as per Sale Deed the land was @

Rs.60,250 per. Sq. Meter (PB-13). Hence, the Fair Market Value of the land

as on 01-04-1981 constitute just 0.02% (15/60250*100 = 0.02%. Similarly

the indexed cost of acquisition to sale consideration is just 0.27% (

647627/240638500*100 = 0.27) (PBP 5). Thus, the AO has accepted the

22 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR Fair Market Value on the facts and circumstances of the case wherein we

do not find any infirmity in the judgement of the AO in his order on the issue

in question. As regards the indexation of the Building, it was noted that the

same was taken from the year of construction as after purchase of land in

year 1972 the building was constructed which means that it was in

existence prior to 01-04-1981 and the RIICO did not allow to remain the

land unused for which it was purchased /on lease, this plausible view of the

AO is not controverted by the ld. DR on this issue of RIICO condition for

consruction. The assessee has taken reference of 31-03-2005 to support

the book value as on that date so that indexation for the same could not be

applied from 1981-82. The AO has also taken into consideration this issue

while passing the assessment order wherein no infirmity is observed. As

regards the sale consideration, it is noted that the assessee did not have

the separate bifurcation of sale consideration for land and building for

which the assessee has submitted the registered sale deed wherein it is

explicitly mentioned at page 2 para (3) ‘’…..constructed boundaries of all

four sides, main gate, structure constructed, water connections etc……

Thus Section 50 is applicable when depreciable asset alone is transferred

and the same is not applicable in this case. It is also noteworthy to mention

that Hon’ble High Court of Madras in the case of CIT vs Coimbatore Lodge

23 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR (2010) 328 ITR 69 observed that Section 50 deals only with the transfer of

depreciable asset; once the land forms part of the assets of undertaking in

and this case the consideration of land is much more and transfer is of

entire land along with the small part of construction and the same is sold as

a whole, it is not possible to bifurcate the sale consideration. Therefore,

Section 50 would not apply in such case. Even the ld. AR of the assessee

demonstrated us that while calculating the effect of the depreciation

claimed for one year is already given and the same is considered by the

AO by taking a plausible view. Thus, it is found that the AO has rightly

allowed the claim of the assessee and there is no infirmity in his order. As

regards the capitalization of interest cost, it is noted that borrowing from

SBBJ was duly reflected in the balance sheet as on 31-03-2002 as Loan

(SBBJ) amounting to Rs.13,33,301.25 (PB-46). The loan was taken in the

name of partner but it was availed by the firm and duly appearing the in the

books of the firm this fact is also not disputed by the revenue. The bank

statement was furnished by the assessee and considered by the AO while

passing the order and the ld. PCIT is finding fault from the same is taking a

different view on the matter for which the AO has already applied his mind.

It is also notable that SBBJ had merged with SBI at the time when the

assessee took the copy of the bank statement of earlier period. All these

24 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR transactions are duly recorded in the audited books of accounts and has

duly submitted in the assessment proceedings and the same is duly

considered by the AO thought the specific comments does not hold the

order as prejudicial to the interest of revenue. Thus, accepting the same

has not resulted into any error on the part of the AO as it is a visible

document already placed on record. Thus, there is no infirmity in the order

of the AO. As regards the shop under construction, it is noted that the

same was constructed in F.Y. 2000-01 and the opening balance as on 01-

04-1981 as per ledger account was to the tune of Rs.12,49,882.50 (PB 27)

and the same was on account of software issue of tally software which the

AO has not objected when the same is correctly claimed from the year

when the construction is made instead of 01.04.1981. This fact in fact in the

interest of revenue and correctly observed even by the PCIT in his order. It

is also noted from the available records that this fact of construction falling

in F.Y 2000-01 was conveyed by the assessee to the AO vide submission

dated 18-08-2018 before him (PB-3). Thus, it is found that the indexation

was rightly claimed and allowed by the AO after proper satisfaction and we

find no infirmity in his assessment order on the issue in question.

CIT, Jaipur-1, it is found that the assessee complied with the enquiries

25 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR made by the AO by filing the required details. This is not a case where the

AO has not made any enquiry. We also find that in the present case the

capital gain offered by the assessee is almost 95.36 % of the total sale

consideration and has offered the substantial amount of capital gain and

the deduction claimed is less than 5 % only and the issues raised in

proceedings u/s 263 of the Act were already considered and examined by

the AO. It is also notable that initiation of proceedings u/s 263 of the Act

amounts to second scrutiny/ investigation of the facts of the case and is

mere suspicion on the plausible view taken by the AO, without any material

on the record to show that assessment order passed by the AO was

erroneous, the proceedings u/s 263 of the Act are not valid as held by the

Hon'ble Rajasthan High Court in the case of CIT vs. Trustees Anupam

Charitable Trust (1987) 167 ITR 129 (Raj.), CIT vs. Godawari Sugar Mills

Ltd. (1993), 203 ITR 108 (Bom.) and CIT vs. Shakti Charities (2000) 160

CTR 107 (Mad.). The Hon'ble Supreme Court in the case of CIT vs. Green

World Corporation (2009) 314 ITR 81 held that the jurisdiction u/s 263 can

be exercised only when both the conditions are satisfied. First order of the

AO should be erroneous and second it should be prejudicial to the interest

of the Revenue. These two conditions are conjunctive. Further it is also

noteworthy that once the AO has taken a plausible view then the ld. Pr.CIT-

26 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR 1 should not interfere with the order of the AO as held by the Hon'ble

Rajasthan High Court in the case of CIT vs. Chambal Fertilizers and

Chemicals Ltd. (2013) 258 CTR 540. It is also notable that ld.Pr CIT cannot

invoke his powers to correct each and every mistake or error committed by

the AO. Every loss to the Revenue cannot be treated as prejudicial to the

interest of the Revenue. If the AO has adopted the one of the courses

permissible under the law or where two views are possible and the AO

takes one view to which the ld. Pr CIT -1 does not agree then in that

situation also the order cannot be held as erroneous and prejudicial to the

interest of the Revenue. The AO is a quasi-judicial authority and his order

cannot be held as erroneous only for the reason that the ld. Pr. CIT does

not feel satisfied with his conclusions. The Hon'ble Delhi High Court in the

case of CIT vs. Kelvinator of India Ltd. (2011) 332 ITR 231 held that the AO

taking one of two plausible views with which the CIT is not agreeing, the

assessment order cannot be termed as an erroneous order prejudicial to

the interest of the Revenue. Further the Hon'ble Karnataka High Court after

considering various judicial pronouncements in the case of CIT vs. Gokul

Das Exports (2011) 333 ITR 214 (Kar ) held that AO taking one out of two

views possible then the assessment order is not prejudicial to the interest

of revenue. Further in the case of CIT vs. Vodafone Essar South Ltd.

27 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR (2013) 2012 Taxman, Hon'ble Delhi High Court held that AO before

passing the order made enquiry and directed his mind on all aspects and

the views adopted by the AO is one of the two plausible views and the ld

Pr.CIT did not agree with that view then ld. Pr.CIT cannot invoke his

reversionary powers u/s 263 of the Act. Hence, the order passed by the AO

was neither erroneous nor prejudicial to the interest of the Revenue. The

AO adopted the plausible view and after considering the evidence

submitted before him, in such a situation the invoking of provisions of

Section 263 by the ld. Pr.CIT-1 is only to carry out fishing enquiries with

objective of substituting his views in place of AO’s view, which is not

permissible in law as held by ITAT, Mumbai Bench in the case of Narayan

Tatu Rane vs. ITO (2016) 70 Taxman.com 2278. Considering all these

ratios of the judgement and respectfully following the judgement of Hon’ble

Jurisdictional High Court in the case of Commissioner of Income Tax, Vs

Ganpat Ram Bishnoi where in the court has held that jurisdiction u/s. 263

cannot be invoked for making short enquires or to go into the process of

assessment again and again merely on the basis of that more enquiry

ought to have been conducted to find something more. In this case we

have seen that the out of 100 % sales consideration 95.36 % is offered as

capital gain and the claim of the assessee is less than 5 % of the total

28 ITA NO.94/JP/2022 HINDUSTAN SALES INDUSTRIAL CORPORATION, JAIPUR VS PR. CIT-1, JAIPUR consideration in this case, thus, what more AO can find fault when he has

already disallowed the cost which in his opinion is not supported and thus

AO has already verified the issues which the PCIT is pointing out. Thus, in

view of the above deliberations and the case laws cited (supra), we do not

concur with the findings of the ld. Pr.CIT and thus the order of the AO is

restored by allowing the appeal of the assessee.

Order pronounced in the Open Court on 10/10/2022

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 10/10/2022 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Hindustan Sales Industrial Corporation, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward- 6(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 94/JP/2022) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत