TMI Blog2022 (6) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. In all fairness, AO should have called for material to show how the assessee got Rs.70 lakhs whereas the entire sale consideration received was Rs.63.50 lakhs in respect of the property at Sainikpuri wherein, without any dispute the assessee had only half a share. If the assessee got any additional amount towards the furniture and fixtures in the said property and the AO having dealt with this issue by applying his mind, certainly this aspect would not be amenable for revision u/s. 263 - It is pertinent to note that neither the notice u/s. 143(2) of the Act calls for any information on this aspect, nor does the assessment order refer to any enquiries or material giving rise to the subjective satisfaction of AO on this aspect. There is nothing to contradict the opinion of the learned PCIT that there is failure on the part of the AO to make the minimum enquiry, let alone sufficient enquiry on this aspect. Acquisition of residential property by the assessee - As law requires that the transfer of title shall take place on the registration of an instrument duly stamped. Assessee is the partner of the firm, M/s.Matrika Hospital which is the transferor of the property. In f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors well justify the order of the learned PCIT in exercise of section 263 of the Act and the irresistible conclusion that flows from our discussion is that the assessment order is not only erroneous but also prejudice to the interest of Revenue - Decided against assessee. - ITA No. 337/Hyd/2021 - - - Dated:- 31-5-2022 - Shri Rama Kanta Panda, Accountant Member And Shri K.Narasimha Chary, Judicial Member For the Assessee : Shri B.Satyanarayana Moorthy For the Revenue : Shri Rajendra Kumar, CIT-DR ORDER PER K. NARASIMHA CHARY, JM: Aggrieved by the order dated 24-03-2021, u/s. 263 of the Income tax Act, 1961 ( the Act ) passed by the Principal Commissioner of Income Tax, Hyderabad ( learned PCIT ) in the case of Dr.Kalpana Alexander ( the assessee ) for the AY.2015-16, assessee preferred this appeal. 2. Briefly stated facts relevant for the disposal of this appeal are that the assessee is an individual, and a medical practitioner at M/s.Matrika Hospital, Hyderabad. For the AY.2015-16, she filed her return of income on 30-09-2015 declaring an income of Rs.46,80,710/- which comprises of Rs.2,74,233/- towards income from house property, Rs.29,01,285/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown as the commercial property of firm in their books, claiming depreciation upto AY.2014-15. Learned PCIT, therefore, formed an opinion that there should have been an enquiry by the learned Assessing Officer in respect of the nature of property acquired and whether really the transfer took place so as to enable the assessee to claim deduction u/s. 54 of the Act. 6. Learned PCIT accordingly, found that the assessment order is erroneous in law insofar as it is prejudicial to the interest of Revenue. She, therefore, set aside the assessment order and directed the learned Assessing Officer to redo the assessment after examining the issue of deduction claimed u/s. 54 of the Act to the extent of Rs.37,27,774/- and the sources for investment to the extent of Rs.13,25,000/- in specified bonds. 7. Assessee is, therefore, aggrieved and filed this appeal with a delay of 85 days and places reliance on the order dt.27-04-2021 of the Hon'ble Apex Court in the case of In Re Cognizance for Extension of Limitation in Miscellaneous Application No.665/2021 in SMW(C) No.3/2020 in support of their prayer that, for the purpose of reckoning the period of limitation, the period subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee legally acquiring the residential house so as to claim the deduction u/s. 54 of the Act was proper, then whether or not such a conclusion reached by the learned Assessing Officer would not be amenable for revision by the learned PCIT. However, in this case, neither the notice issued u/s. 143(2) of the Act nor the assessment order speak anything on the enquiries so made and unexplained discrepancies pointed out by the learned PCIT justifies the action taken by the learned PCIT to set aside the assessment order with a direction to redo the assessment, keeping in view the mandate for assessment. He submits that in this case, it is not the question of sufficiency of enquiries but it is the lack of enquiries that prompted the learned PCIT to exercise jurisdiction u/s. 263 of the Act. Learned DR submitted that the twin conditions of Section 263 of the Act, namely, erroneous order and prejudicial to the interest of Revenue are satisfied in this case and, therefore, no interference with the impugned order is warranted. 10. Insofar as the delay aspect is concerned, the period under consideration is ordered to be excluded by the Hon'ble Apex Court in view of the pandemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imum enquiry, let alone sufficient enquiry on this aspect. 12. Insofar as the acquisition of residential property by the assessee is concerned, law requires that the transfer of title shall take place on the registration of an instrument duly stamped. Assessee is the partner of the firm, M/s.Matrika Hospital which is the transferor of the property. In fact, the land originally belongs to the assessee which was transferred to the firm wherefrom the assessee acquired it back. When once the document evidencing the transfer is not properly stamped or registered even after sufficient time, and that too when the transferee claims to have paid the entire sale consideration, it should have provoked a doubt in the mind of the learned Assessing Officer to look at the genuineness of the transaction. Learned Assessing Officer should have verified whether the payment of sale consideration, as claimed by the assessee, is supported by any evidence. Learned PCIT recorded at paragraph No.2(d) at point 4 that the firm did not disclose any capital gains for the relevant year in respect of the sale of undivided portion of land purported to have been transferred under the agreement of sale. At least ..... X X X X Extracts X X X X X X X X Extracts X X X X
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