Shri Rajesh Sharma , Bhopal V. PCIT -1 Bhopal, Bhopal

ITA 109/Ind/2021

AI Insights

The case involves Shri Rajesh Sharma, the appellant, who contested the revision order passed by the Principal Commissioner of Income-Tax-1, Bhopal. The revision order, dated 18.03.2021, was based on the grounds that the original assessment order dated 29.12.2017 was erroneous and prejudicial to the interest of the revenue, as it lacked necessary inquiries and verifications. The Tribunal noted the absence of the assessee's representation during the proceedings and relied on the material available on record to uphold the revision order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130878 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-12-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 27-05-2021
• Other Referred Cases: Ram Pyari Saraogi vs. CIT, Malabar Industrial Co. Ltd. vs. CIT, CIT vs. Bhagwan Das, Pratap Footwear v. ACIT, CIT v. Jawahar Bhattacharjee, Virbhadra Singh (HUF) vs. Principal Commissioner of Income Tax (Himachal Pradesh)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Period of limitation; Time period of passing order; Set aside
• Section: 143(3)

Judgement Text

Page 1 of 6 आयकरअपीलीयअिधकरण,इंदौर ायपीठ,इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE MS.SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER (Conducted through Virtual Court) ITA No.109/Ind/2021 Assessment Year: 2015-16 Shri Rajesh Sharma Bhopal बनाम/ Vs. Pr. CIT-1 Bhopal (Appellant / Assessee) (Respondent / Revenue) PAN: AMPPS4972A Assessee by None Revenue by Shri P.K. Mishra, CIT-DR Date of Hearing 13.12.2022 Date of Pronouncement 30.01.2023 आदेश/O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by revision-order dated 18.03.2021passed by learned Pr. Commissioner of Income-Tax-1,Bhopal[“Ld. PCIT”]u/s 263 of Income-tax Act, 1961 [“the Act”], which in turn arises out of assessment-order dated 29.12.2017 passed by learned ACIT-5(1), Bhopal[“Ld. AO”]u/s 143(3) for Assessment-Year [“AY”] 2015-16, the assessee has filed this appeal on following grounds: “That on the facts and in the circumstances of the case of the appellant, the ld. Pr. CIT-1(Bhopal) has erred: Shri Rajesh Sharma ITA No.109/Ind/2021 Assessment year 2015-16 Page 2 of 6 (a) in passing order u/s 263 of the Income Tax Act (as the same may be barred by limitation period and also due to other reasons): and (b) also in setting aside the order u/s 143(3) for de novo assessment (on various improper and vague basis and also without providing the appellant reasonable opportunity of being heard). 2. When the case was called, none appeared on behalf of assessee. On perusal of case file, we find that the case involves section 263 which is a priority-matter and there had been no appearance from assessee’s side on many hearings fixed in past. Lastly, a notice was also served through the office of Ld. DR and as per service-report F.No. CIT(DR)/ITAT/IND/2022-23 dated 01/11/2022 filed by DR’s office, the service was made for hearing fixed on 11.11.2022. On that day, the hearing was again adjourned till today i.e. 13.12.2012 at the request of assessee, but still none appeared today. Since the case involves a priority-matter, it is not possible to keep it pending. Moreover, the Ld. DR representing the revenue was ready to argue the case and submitted that even before Ld. PCIT during revision- proceeding, there was non-appearance from assessee’s side. Ld. DR further submitted that he is ready to argue the case and it can be decided on the basis of material held on record and after hearing him. Taking into account all these aspects, we proceeded for hearing. 3. Briefly stated the facts are such that the assessee submitted return of relevant AY 2015-16 which was subjected to scrutiny-assessment. Finally, the Ld. AO completed assessment u/s 143(3). Subsequently,the Ld. PCIT examined the record of assessment-proceeding and viewed that the assessment-order passed by Ld. AO is erroneous in so far it is prejudicial to the interest of revenue, which attracts revisionary-jurisdiction u/s 263. The Ld. PCIT issued show-cause notice dated 01.03.2021, which remained un- responded by assessee. Ultimately, the Ld. PCIT passed revision-order dated 18.03.2021 by which the assessment-order was set aside and a direction Shri Rajesh Sharma ITA No.109/Ind/2021 Assessment year 2015-16 Page 3 of 6 was given to the AO to re-frame assessment de novo.Aggrieved by such revision-order, the assessee has filed this appeal. Ground No. 1(a): 4. In this ground, the assessee claims that the revision-order passed by Ld. PCIT is barred by limitation period. 5. We note from the records that the assessment-order sought be revised was passed on 29.12.2017 and according to section 263(2), the revision- order could have been passed uptill31.03.2020i.e. within 2 years from end of the financial-year in which the order sought to be revised was passed. However, on account of Covid-19 pandemic, the time-limitation was extended by The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 notified vide Gazette “CG-DL-E- 29092020-222110 No. 63 New Delhi, dated 29.09.2020 issued by Secretary to Govt. of India read with subsequent amendments thereto, till 31.03.2021 (or even further extended). Therefore, the revision-order passed on 18.03.2021 is not time-barred as claimed by assessee. Being so, we dismiss the ground raised by assessee which is devoid of any merit. Ground No. 1(b): 6. In this ground, the assessee claims that the Ld. PCIT has erred in setting aside the assessment-order. 7. We note from revision-order that despite show-cause notice dated 01.03.2021 given to the assessee, there was no representation or adjournment-request from assessee’s side, leaving Ld. PCIT to decide the case on the basis of material held on record, which the Ld. PCIT did. We reproduce below the operative part of revision-order: “3.1 there has been no compliance on part of the assessee to give detailed explanation regarding eh issue taken for review u/s 263. It clearly shows that the assessee is not keen to pursue the matter. It is undisputed that the Shri Rajesh Sharma ITA No.109/Ind/2021 Assessment year 2015-16 Page 4 of 6 notice was served upon the assessee. The action of assessee of not availing the opportunity provided can be said to be vigilantibus non dormientibus jura subveniunt which means law will help only those who are vigilant. Law will not assist those who are careless of their rights. 3.2 Accordingly, it is held that the assessee has not evidence/submissions to make with regard to the issues raised as there is nothing in possession of the assessee to contend the issues raised in show cause notices u/s 263. Accordingly, I proceed with my findings on the basis of information/facts available on record. 4. On perusal of the assessment order and related records, it is observed that assessing officer did not enquire into the issue stated in SCN which should have been made during the assessment proceedings. It is incumbent upon the assessing officer to investigate the facts required to be examined and verified to complete the assessment as per law. If the Assessing officer fails to conduct the said investigation, he commits an error and the word erroneous includes failure to make the enquiry. In such cases the order becomes erroneous because enquiry or verification has not made. As pr the amendment made to Clause (a) to Explanation 2 (inserted by Finance Act 2015 w.e.f. 1.6.2015) of section 263(1) of I.T. Act which is reproduced here below- “For the purposes of this, it is here by declared that an order passed by the Assessing officer shall be deemed to be erroneous in so far as it is prejudicial to the interest of revenue, if in opinion of the Principal Commissioner or Commissioner- (a) the order is passed without making inquiries or verification which should have been made (b) the order is passed allowing any relief without inquiring into the claim (c) .... (d) .... 5. For the above reasons I am satisfied that this is a fit case where action u/s 263 is justified and inescapable. This view of mine further gains strength and support by the ratio of the decisions in the case laws mentioned here below: 1. Ram Pyari Saraogi vs. CIT(1968) 67 ITR 84 (SC) the Hon’ble Supreme Court has held that assessment made in undue haste and without making inquiries which are called for the circumstances of the case is erroneous and prejudicial to the interest of revenue. Shri Rajesh Sharma ITA No.109/Ind/2021 Assessment year 2015-16 Page 5 of 6 2.Malabar Industrial Co. ltd. Vs. CIT (2000) 243 ITR 83 (SC) Hon’ble Suprme Court has held that non-application of mind by the assessing authority on a particular issue, renders the assessment order susceptible to revision. 3.CIT vs. Bhagwan Das (2005) 272 ITR 367 (All) (HC) the Hon’ble High Court has held that non-application of mind by the assessing officer was prejudicial to the interest of the revenue. 4.Pratap Footwear v. ACIT (2003) SOT 638 (Jabalpur (Trib.) the Hon’ble Tribunal has held that non-application of mind by the Assessing Officer was prejudicial to the interest of revenue. 5.CIT v. Jawahar Bhattacharjee (2012) 341 ITR 434 (Gauhati) (HC)(FB) The Hon’ble High Court has held that error in assessment order arising by ignoring relevant material on incorrect assumption of facts or incorrect application of law- Amenable to revision u/s 263. 6. (2017) (Himachal Pradesh /(2017) 298 CTR 393, Virbhadra Singh (HUF) vs. Principal Commissioner of Income Tax (Himachal Pradesh): where no inquiry was conducted by the assessing officer in passing assessment order after accepting revised return file by assessee, commissioner was well within his power under section 263 to direct fresh assessment. In view of the detailed reasons given and discussions made herein above, the assessment order u/s 143(3) dated 29.12.2017 made by the ACIT-5(1), Bhopal for the A.Y.2015-16 is hereby set aside u/s 263 with the direction to the AO to make it de novo after proper examination, inquiry and verification on all aspects, after giving reasonable opportunity to the assessee of being heard and after bringing on records the relevant supporting material and evidences in support of the action of the AO. 8. Thus, there is no mistake in the revision-order which is clearly stated to have been passed after perusal of the assessment-order and related records. Being so, we do not find any merit in the ground raised by assessee and, hence, dismiss the same. Shri Rajesh Sharma ITA No.109/Ind/2021 Assessment year 2015-16 Page 6 of 6 9. Resultantly, this appeal of assessee is dismissed. Order pronounced as per Rule 34 of I.T.A.T. Rules, 1963 on 30/01/2023 Order pronounced in the open court on ....../....../2023 Sd/- Sd/- (SUCHITRA KAMBLE) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक/Dated : 30.01.2023 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore 1. Date of taking dictation 18.1.23 2. Date of typing & draft order placed before the Dictating Member 18.1.23 3. Date on which the approved draft comes to the Sr. P.S./P.S. 18.1.23 4. Date on which the approved draft is placed before other Member 5. Date on which the fair order is placed before the Dictating Member for pronouncement 6. Date on which the file goes to the Bench Clerk 7. Date on which the file goes to the Head Clerk 8. Date on which the file goes to the Assistant Registrar for signature on the order 9. Date of dispatch of the Order