RAJENDRA G MISHRA, NAGPUR V. PR. CIT-2, NAGPUR

ITA 94/NAG/2020

AI Insights

The case involves Shri Rajendra G. Mishra, the appellant, contesting the revision of his income tax assessment for the year 2015-2016 by the PCIT under section 263 of the Income Tax Act. The PCIT found that the original assessment order passed by the Assessing Officer (AO) was erroneous as it did not disallow the entire indexed cost of improvement amounting to Rs.15,65,766 claimed by the assessee for the financial years 1989-90 and 1991-92. The Tribunal examined the arguments and evidence presented by both parties, including the assessee's claim that all necessary details were provided during the assessment, and the AO's acceptance of the assessee's claims. However, the Tribunal upheld the PCIT's revision, noting the absence of specific queries from the AO regarding the details of the costs claimed, which were incurred over a span of several years, and confirmed the need for a thorough re-examination of the claims.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136605 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-09-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 23-07-2020
• Other Referred Cases: Commissioner of Income Tax, Patiala Vs Himachal Pradesh Financial Corporation [2010] 186 TAXMAN 105 (HP)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Revision of order; Capital Gains
• Section: 54; 263; 143(3); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH : NAGPUR [THROUGH VIRTUAL HEARING AT INCOME TAX APPELLATE TRIBUNAL : PUNE BENCHES : PUNE] BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK RIPOTE, ACCOUNTANT MEMBER I.T.A.No.94/NAG./2020 Assessment Year – 2015-2016 Shri Rajendra G. Mishra 17-1, Palm Road, Civil Lines, Nagpur – 440 001 Maharashtra. PAN ABAPM6343D vs. The Pr. CIT-2, 2 nd Floor, Saraf Chambers, Mount Road, Sadar, Nagpur – 440 001 Maharashtra. (Appellant) (Respondent) For Assessee : Shri Abhay Agrawal For Revenue : Shri Kailash G. Kanojiya, CIT-DR Date of Hearing : 20.09.2023 Date of Pronouncement : 26.10.2023 ORDER PER SATBEER SINGH GODARA, J.M. : This assessee’s appeal arises against the Pr. CIT(A)- 2, Nagpur’s Order dated 26.02.2020, passed u/sec.263(1) of the Income Tax Act, 1961 (in short "the Act"). Heard both the parties. Case file perused. 2. The assessee pleads the following substantive grounds in the instant appeal : 1. “Whether on the facts and circumstances, the learned CIT has erred in coming to the conclusion that assessment 2 ITA.No.94/Nag./2020 order passed by learned AO u/s 143(3) dated 07.11.2017 is erroneous and prejudicial to the interests of the revenue and in setting aside the assessment order with a direction to the learned AO to conduct proper enquiry and examination. 2. Whether on the facts and circumstances, the learned CIT erred in not appreciating the fact that, the learned AO had examined the issue of long term capital gains and deduction claimed by the assessee u/s 54 by issuing show cause notices from time to time, and had thereafter accepted the claim of the assessee; thus the order cannot be termed as erroneous. 3. Whether on the facts and circumstances, the learned CIT grossly erred in observing that, during assessment proceedings the assessee had submitted that he did not have any details or vouchers for cost of improvement; which is false, incorrect and contrary to the facts on record. 4. Whether on the facts and circumstances, the learned CIT grossly overlooked the fact that, during assessment proceedings, vide show cause notice dated 11/08/2017, the learned AO had specifically asked the assessee to produce documentary evidences in respect of purchase cost and additions thereon, which were duly produced by 3 ITA.No.94/Nag./2020 the assessee and corroborated by learned AO's observations in the assessment order. 5. Whether on the facts and circumstances, the learned CIT erred in not appreciating that, the learned AO had mentioned in assessment order that, only vouchers for expenses amounting to Rs. 12,700 could not be produced, for which separate addition was made. 6. Whether on the facts and circumstances, the learned CIT erred in not considering the submission filed by the assessee before learned CIT on 10/01/2020, wherein it was clearly submitted that details and vouchers for improvement cost were produced during assessment proceedings. 7. The appellant craves leave to alter, amend, modify or substitute any ground/grounds and to add any new ground or grounds on or before the appeal is disposed off.” 3. Both the parties next invited our attention to the PCIT’s impugned revision directions holding the Assessing Officer’s sec.143(3) regular assessment dated 07.11.2017 as an erroneous one causing prejudice to the interest of the Revenue as under : “4. I have carefully considered the facts of the case and the assessment order along with the contentions of the assessee. So far as Assessment Order dated 14-11- 4 ITA.No.94/Nag./2020 2017 is concerned I have gone through the order sheets and questionnaires issued by the AO. It is seen that while computing the long term Capital Gain, the assessee has claimed index cost of improvement for F.Y. 1989-90 of Rs.12,94,586/- and for F.Y. 1991-92 of Rs.2,71,180/-, Further during’ the course of assessment proceedings it is seen that the AO had made a query regarding the cost of improvement claimed by the assessee. It was submitted by the assessee that he has not having any details of the expenses relating to cost of improvement claimed by him in the computation of Capital Gain. The assessee himself has stated that no evidence for expenses claimed on improvement of the property in question is available with him. There was no. other evidence to show that indeed some construction in the nature of ‘Improvement’ had taken place. Under these circumstances, the assessee will not be entitled to the indexed cost of improvement for F.Yrs. 1989-90 and 1991-92 as claimed by him. The entire expenses (i.e., indexed cost of improvement) amounting to Rs.15,65,766/- (1294586+271180) will be required to be disallowed and added back to the total income of the assessee. Even though there was no material on record with the Assessing Officer, the Assessing Officer was not right in restricting the above disallowance to Rs.65300/- only. Hence, the order passed by the AO is erroneous and 5 ITA.No.94/Nag./2020 prejudicial to the interest of the revenue. This is ratified by the decision of the High Court of Himachal Pradesh in the case of the Commissioner of- Income Tax, Patiala Vs Himachal Pradesh Financial Corporation [2010] 186 TAXMAN 105 (HP) dated 29.05.2008. 5. During the revision proceedings u/s 263 of the I.T. Act, 1961, the assessee’s counsel was confronted with the facts of the case. The counsel has stated that. evidence for expenses claimed on improvement of the property in question is not available with him. He was not able to provide any other evidence to support his claim. Under these circumstances, the assessee is not entitled to the indexed cost of improvement for F.Yrs. 1989-90 and 1991- 92 as claimed by him. The entire, expenses (i.e., indexed cost of improvement) amounting to Rs.15,65,766/- (1294586+271180) will be required to be disallowed and added back to the total income of the assessee. The AO has failed to disallow the entire index cost of improvement which has resulted in under assessment of income and thus causing prejudice to the interest of the Revenue. 6. In view of the above narrated facts and circumstances of the case, considering the findings of the' Judgment of the Hon’ble ITAT/High Courts on the issue, and keeping in view .the Fairness, Judiciousness and 6 ITA.No.94/Nag./2020 Transparency of the facts as emerged out in the present ease, I am of the considered view that above order u/s.143(3) dated 07.11.2017 is erroneous and prejudicial to the interest of the revenue and therefore is set-aside. The AO is directed to pass the Order afresh after proper enquiry and after thoroughly examining the above referred issue which lead to under assessment and loss of revenue after giving reasonable opportunity of being, heard to the assessee.” 4. Learned counsel representing the assessee vehemently argued during the course of hearing that the Assessing Officer had rightly framed his impugned assessment not disallowing the corresponding expenses for the purpose of computing the long term capital gains. Mr. Agrawal took us to the assessee’s paper book running into 22 pages comprising of the case records and other details. His case in light thereof is that once the Assessing Officer had carried out all the necessary enquiries for the purpose of cost of acquisition/improvement of the capital asset(s) in issue; his assessment is neither erroneous nor had caused prejudice to the interest of the Revenue attracting sec.263 revision jurisdiction. 5. Revenue has drawn strong support from the PCIT’s foregoing revision directions. 7 ITA.No.94/Nag./2020 6. We have given our thoughtful consideration to the foregoing vehement rival stands and find no merit in assessee’s arguments. This is for the precise reason that there is not even a single notice by the Assessing Officer raising specific queries of the details of cost of acquisition/ improvement claimed at the assessee’s behest whilst computing his capital gains. We make it clear that the assessee’s case before us is that although we are in assessment year 2015-16; however, the impugned expenditure had been incurred from assessment year 1989-90 onwards. That being the case, it was assessee’s bounden duty only to file the requisite supportive material during the course of assessment on being put to question by the Assessing Officer. That has admittedly not been done as the facts before us speak for themselves. Faced with the situation, we quote Malabar Industrial Company Ltd. vs. CIT [2000] 243 ITR 83 (SC), Rampyari Devi Saraogi vs. CIT [1968] 67 ITR 84 (SC), Tara Devi Aggarwal vs CIT 1973 SCR (2)1035 and CIT vs. Paville Projects Pvt. Ltd., [2023] 453 ITR 447 (SC); to confirm the learned PCIT’s revision directions. Ordered accordingly. 7. This assessee’s appeal is dismissed in above terms. 8 ITA.No.94/Nag./2020 Order pronounced in the open Court on 26.10.2023. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 26 th October, 2023 VBP/- Copy to 1. The applicant 2. The respondent 3. The Jt. CIT, Range-2, Nagpur. 4. D.R. ITAT, Nagpur Bench, Nagpur. 5. Guard File. //By Order// //True Copy // Assistant Registrar, ITAT, Pune Benches, Pune.