DHANA-SHREE DEVELOPERS , MUMBAI V. PRINCIPLE CIT -27, MUMBAI, MUMBAI

ITA 1036/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0911 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-10-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 11-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Revision of order; Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 147; 263; 143(3); 101

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, ACCOUNTNAT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER ITA No.1036/Mum./2022 (Assessment Year : 2015–16) Dhana–Shree Developers C/o Mehul Kotecha, 40, A–Wing 3 rd Floor, Dattani Centre Mahadevbhai Desai Road Kandivali (East), Mumbai 400 101 PAN – AACFD9296M ................ Appellant v/s Principal Commissioner of Income Tax Circle–27, Mumbai ................Respondent Assessee by : Shri Bhupendra Shah Revenue by : Shri T. Shankar Date of Hearing – 06/10/2022 Date of Order – 13/10/2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present appeal has been filed by the assessee challenging the impugned order dated 26/03/2021 passed under section 263 of the Income Tax Act, 1961 (‘the Act’) by learned Principal Commissioner of Income Tax, Mumbai–27 (‘learned PCIT’), for assessment year 2015–16. 2. In this appeal, assessee has raised following grounds: Dhana–Shree Developers ITA No.1036/Mum./2022 Page | 2 “In the facts of the case and in Law, the learned PCIT erred in invoking Section 263 to the case of the Appellant only by way of change of opinion, without pointing out any error in the order of the A.O. and also by disregarding detailed submissions made to him from time to time. 2. In the facts of the case and in Law, the Show Cause Notice & or order u/s 263 alleging errors and prejudice, itself is erroneous on many counts as follows. a. In the facts of the case and in Law, the learned PCIT erred in invoking the provision of sec. 263 merely because he wants to take a view different from the one taken by the Assessing Officer and thereby changing the opinion of the Assessing Officer by his opinion. b. In the facts of the case and in Law, the learned PCIT erred in holding that Assessing Officer failed to verify the fact that there is difference between the stamp duty value and agreement value of the flats sold. c. In the facts of the case and in Law, the learned PCIT erred in passing the order u/s 263 by disregarding the fact no notice of hearing u/s 263 was served to the Appellant. d. In the facts of the case and in Law, the learned PCIT erred in passing the order u/s 263 by disregarding the fact the same was not served on the Appellant and not appearing on website as on today. [B] Relief Prayed: The appellant therefore prays as follows, 1. To quash the order u/s 263 because PCIT had no proper jurisdiction to invoke provisions of revision and merely a change of opinion. [C] General: - The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. This appeal is filed in time and the same may be allowed in full. A Detailed paper book along with case laws will be submitted at the time of hearing.” 3. The only grievance of the assessee is against revision order passed by learned PCIT under section 263 of the Act. 4. During the course of hearing, learned Authorised Representative (‘learned AR’) submitted that all the details were furnished by the assessee Dhana–Shree Developers ITA No.1036/Mum./2022 Page | 3 during the course of reassessment proceedings under section 147 of the Act. The learned AR further submitted that after consideration of the details filed by the assessee, the Assessing Officer passed order dated 18/12/2018, under section 143(3) r/w section 147 of the Act accepting the returned income. Accordingly, the assessment order is not erroneous and impugned revision proceedings were initiated to take a different view of the matter, without considering the aforesaid aspect. 5. From the perusal of impugned order passed under section 263 of the Act, we find that show cause notice dated 11/03/2021 under section 263 of the Act was issued to the assessee and details/explanation was sought. However, the said notice was not complied by the assessee and learned PCIT proceeded to pass the impugned order under section 263 of the Act in absence of any submission of assessee. During the course of hearing, it has also been submitted that neither the show cause notice nor the impugned order passed under section 263 of the Act was received by the assessee. It has further been submitted that only after the Assessing Officer handed over the physical copy of the impugned order to the assessee, the assessee filed the present appeal. 6. On the other hand, learned Departmental Representative vehemently relied upon the impugned order. 7. Having heard the submissions of both sides and perused the material available on record, we are of the considered view that in the interest of natural justice, assessee should be provided with one more opportunity to present its case before the learned PCIT. Accordingly, we set aside the Dhana–Shree Developers ITA No.1036/Mum./2022 Page | 4 impugned order passed by the learned PCIT and restore all the issues to the file of learned PCIT for examining them afresh after affording adequate opportunity of being heard to the assessee. 8. In the result, appeal by the assessee is allowed for statistical purpose. Order pronounced in the open Court on 13/10/2022 Sd/- S. RIFAUR RAHMAN ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 13/10/2022 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai