TMI Blog2023 (2) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessee`s case under consideration. Therefore, we note that the issue raised by Ld.PCIT is revenue neutral, as it does give loss to the Revenue. Since one of conditions is that order should be prejudicial to the interest of revenue, which is absent in assessee s case under consideration. We note that although the order passed by the Assessing Officer is erroneous because the right income should be taxable in right assessment year however, since the tax rates are same in assessment year 2013-14 and 2014-15 therefore, we note that there is no loss to the Revenue. Considering the smallness of amount and considering the fact that tax rate in both the assessment years are same, hence there is no loss to the Revenue, (one of the conditions is not satisfied to invoke jurisdiction u/s 263) therefore, we do not instruct the Assessing Officer to tax the impugned amount of Rs.9,00,000/- in assessment year 2014-15, as no any useful purpose would be served and it would be unnecessary burden on the Assessing Officer to make the compliance to tax the disputed amount Rs.9,00,000/- in assessment year 2014-15. Decided in favour of assessee. - ITA No. 171/SRT/2019 - - - Dated:- 30-1-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer on 29.12.2016 determining total income at Rs.65,04,690/- after making addition of Rs.55,80,040/-, Rs.30,000/-, Rs.4,816/- and Rs.4,50,000/- on account of unaccounted income, undisclosed rent income, undisclosed interest income and income from undisclosed sources respectively. 4. Later, Learned Principal Commissioner of Income Tax(in short ld. PCIT ] has exercised his jurisdiction under section 263 of the Income Tax Act, 1961.On examination of the case records, it was noticed by ld PCIT that a survey action u/s 133A of the Act was carried out at the business premises of the assessee on 03.03.2015. During the course of survey, a Diary-2004, containing date-wise actual cash sale receipts and noting regarding financial transactions related to various assessment years, was found and impounded. On being confronted with the contents of the diary, assessee vide letter dated 23.11.2016 and in his statement recorded on oath on 16.12.2016, stated that he and his brothers, namely, Shri Tulsidas G. Diyalani, Shri Prakash G. Diyalani and Shri Ramesh G. Diyalani, made investments of Rs.1,20,00,000/- in properties during the period 2001-2005. It was also stated by the assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the above written submission of the assessee, the ld PCIT noted that assessee has remained silent on the issue of Rs.9,00,000/- received during the year under consideration in his written submission. With reference to the written submission dated 06.09.2018, a factual report was called from the Assessing Officer through the Jt. Commissioner of Income Tax, Range-1, Bharuch vide letter dated 07.09.2018. 7. The Ld.Jt-CIT vide letter dated 19.09.2018 submitted the report of the A.O. dated 18.09.2018. The Assessing Officer reported that a diary-2004, marked as Annexure BF-21, impounded during the survey u/s 133A of the Act on 03.03.2015 at the business premises of the assessee, contained date-wise actual cash sale receipts and noting regarding financial transactions related to various assessment years. Accordingly, the cases of the assessee for A.Y.2010-11 and 2013-14 were reopened and additions of Rs.7,60,630/- and Rs.20,39,370/- respectively aggregating to Rs.28,00,000/- (Rs.7,60,630 + Rs.20,39,370) were made on account of the cash receipts from the sale of properties situated in Mumbai. However, during the course of assessment proceedings for A.Y.2015-16, on verification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue can argue that each year is a separate year and the correct income has to be assessed for each year but then taking recourse to section 263 of the Act is totally against the principles of law. 9. However, ld PCIT has rejected the contention of the assessee and observed that assessee received a total amount of Rs.9,00,000/- from the aforementioned investment in properties situated in Mumbai during the assessment year under consideration, i.e 2014-15. No addition against the same had been made while finalizing assessment proceedings for A.Y.2014-15 u/s 143(3) of the Act. During the course of proceedings u/s 263 of the Act, assessee, in his submission dated 06.09.2018, stated that during A.Y.2010-11 and 2013-14, total money received was Rs.34,50,000/- and Rs.92,50,000/- out of which his share was Rs,7,60,630/- and Rs.20,39,370/- respectively. However, assessee remained silent in respect of the amount of Rs.9,00,000/- received during the year under consideration. 10. The ld PCIT thus noted that total income of the previous year of the assessee is chargeable to tax u/s 4 of the Act. Two of the principles deductible from the section are: (i) that the tax is levied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.9,00,000/- is taxed in the current assessment year 2014-15 or in previous assessment year 2013-14, hence it is revenue neutral and there is no impact on the revenue as the income tax rate for both the assessment years were same. Hence, the order passed by the Assessing Officer should not be erroneous and prejudicial to the interest of revenue as there is no loss to the revenue. 15. Without prejudice to the above, Ld. Counsel, took us through paper book page-3 and pointed out that if amount of Rs.9,00,000/- is considered for current assessment year 2014-15 than in that situation, necessary instruction should be given to the Assessing Officer to make the adjustment in the previous assessment year s (2013-14) taxable income and such instruction may be given by the Tribunal as per section 254(1) of the Act. 16. On the other hand, Learned CIT-DR for the Revenue submitted that relevant income should be taxable in the relevant assessment year. The amount of Rs.9,00,000/- does not pertain to assessment year 2013-14, however it pertains to assessment year 2014-15 under consideration. Therefore, it should be taxable in the relevant assessment year inasmuch as this amount pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue, whether Rs.9,00,000/- is taxed in assessment year 2013-14 or assessment year 2014-15. 18. In order to invoke the jurisdiction under section 263 of the Act, two conditions should be satisfied viz: (1) order passed by the Assessing Officer should be erroneous and (2) prejudicial to the interest of Revenue. We note that Assessing Officer taxed the disputed amount of Rs.9,00,000/- in assessment year 2013-14 instead of assessment year 2014-15, therefore order passed by the Assessing Officer is erroneous. However, we note that since in both the assessment years 2013-14 and 2014-15 tax rate was same, therefore order passed by the Assessing Officer should not be prejudicial to the interest of Revenue, (as there is no loss to the Revenue). Hence, one of the conditions (prejudicial to the interest of Revenue) is not getting satisfied in the assessee`s case under consideration. 19. Therefore, we note that the issue raised by Ld.PCIT is revenue neutral, as it does give loss to the Revenue. Since one of conditions is that order should be prejudicial to the interest of revenue, which is absent in assessee s case under consideration. We note that although the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
