Income-Tax------

----Revision---Income from letting out property assessed as business. income- CIT finding that assessment had been made without proper enquiry ---CIT justified in setting aside assessment order directing Assessing Officer to ascertain whether income was from business or from property---Indian Income Tax Act, 1961, Ss.22, 28 & 263.

The assessee was engaged in manufacture and sale of bidis. During the examination of the assessee's ease records, the Commissioner of Income tax noticed that the assessment order passed by the Assessing Officer under section 143(3) of the Income Tax Act, was erroneous and also prejudicial to the interests of the Revenue inasmuch as, the Assessing Officer without making any enquiry at all to ascertain whether the income received from letting out of the properties was assessable as income from business or as income from house property, accepted the assessee's claim that such income was assessable as income from business and thereby allowed excessive deductions towards repairs, etc., and also depreciation. This failure on the part of the Assessing Officer to make necessary enquiry rendered -the assessment erroneous and also prejudicial to the interests of the Revenue. The Commissioner, therefore, in exercise of his powers conferred under section 263 of the Act, set aside the assessment order and remanded the case to the Assessing Officer to make an enquiry into the matter and decide the same. The Tribunal set aside the order of the Commissioner of Income-tax passed under section 263 of the Income Tax Act, 1961, on the ground that the Commissioner of Income-tax had not given a definite finding whether the income from letting out of the 'godowns was assessable under the head "Business income" or "Income from house property". On a reference:

Held, that simply because the Commissioner of Income-tax had observed that it was a debatable issue and left the issue to be decided by the Assessing Officer it could not be held that the order of the Commissioner of Income-tax was erroneous. The Commissioner of Income-tax's approach was correct. If the Commissioner of Income-tax had recorded that it was an income not arising out of the business, then further inquiry by the Assessing Officer would have been influenced by that observation. The Commissioner of Income-tax had only observed that no proper enquiry had been made and an enquiry was to be made by the Assessing Officer after hearing the parties. The order of revision was valid.

CIT v. Gulabrai & Sons (MCC No. 29 of 1990---15-2-1996 (MP)) ref.

Abhay Sapre for the Commissioner.

M.M Agrawal for the Assessee.

JUDGMENT

K. MATHUR,-C. J.---This is .a reference under section 256(1) of the Income-tax Act, 1961, at the instance of the Revenue and the following question of law has been referred by the Tribunal for the opinion of this Court:

"Whether, on the facts and .in the circumstances of the case, the Tribunal was justified in law in cancelling the order passed by the Commissioner under section 263 of the Income-tax Act, dated March 23, 1989?"

The assessee is engaged in manufacture and sale of bidis. During the examination of the assessee's case records, the Commissioner of Income-tax noticed that the assessment order pissed h4 the Assessing Officer under section 143(3) of the Income-tax Act was erroneous and also prejudicial to the interests of the Revenue inasmuch as, the Assessing Officer without making any enquiry at all to ascertain whether the income received from letting out of the properties were assessable as income from business or as income from house property accepted the assessee's claim that such income was assessable as income from business and thereby allowed excessive deductions The Wards repairs. etc., and also depreciation. This failure on the part of the Assessing Office to make necessary enquiry rendered the assessment erroneous and also prejudicial to the interests of the Revenue. The Commissioner, therefore, in exercise of his powers conferred under section 263 of the Act, set aside the assessment order and, remanded the case back to the Assessing Officer to make an enquiry into the matter and decide the same.

The assessee went up in appeal and the Tribunal set aside the order of the Commissioner of Income-tax passed under section 263 of the Income-tax Act on the ground that the Commissioner of Income-tax has not given a definite finding whether the income from, letting out of the godowns was assessable under the head "Business income" or "Income from house property", observed that this is a debatable issue, and left the issue to be decided by the Assessing Officer. The Tribunal set aside the order passed by the Commissioner of Income-tax under section 263 of the Income-tax Act.

We have heard learned counsel for the parties and perused the record.

It is an admitted position that it appears from the records that the income has been derived by way of rent and the Assessing Officer was under an obligation to examine as to whether the income from letting out of the godowns and buildings is assessable under the head "Income from house property" or otherwise. It appears that the same was not inquired into and no proper efforts were made to find out whether the income derived from letting out of godowns and buildings was assessable under the head "Business income" of the assessee or not. Therefore, in our opinion, the view taken by the Commissioner of Income-tax is not erroneous and it should not have been interfered with, by the Tribunal, simply because, the Commissioner of Income-tax has observed that it is a debatable issue and left the issue to be decided by the Assessing Officer, This was the correct approach because if the Commissioner of Income-tax has recorded that it is an income not arising out of the business then further inquiry by the Assessing Officer would have been influenced by that observation. The Commissioner of Income-tax has only observed that no proper enquiry has been made and let an enquiry be made by the Assessing Officer after hearing the parties. This is the correct approach of the Commissioner of Income-tax and we are of the opinion that the view taken by the Tribunal in the present situation does not appear to be justified.

Learned counsel for the Revenue has invited our attention to the decision of this Court, dated February 15, 1996, passed in M.C.C. No: 29 of 1990 (CIT v. Gulabrai and Sons). Since the matter is being remanded back to the Assessing Officer to make enquiry, therefore, we need not express any opinion. For the reasons stated above, the view taken by the Tribunal does not appear to be correct. Hence, we answer the aforesaid question in favour of the Revenue and against the assessee.

M.B.A./4020/FCQuestion answered