SANJAY RAJGURU MANTRA, RAJKOT V. THE PICT, RAJKOT-1, RAJOT, RAJKOT

ITA 109/RJT/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9384 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 11-04-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Revision of order; Question of law; Assessment record; TDS; Set aside
• Section: 263; 2; 143(3); 142(1); 40(a)(ia); 194C; 69A; 2(A)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER, And SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER आयकर अपील सं./ITA No. 109/Rjt/2022 िनधाᭅरण वषᭅ/Asstt. Years: 2017-2018 M/s Sanjay Rajguru Mantra, Isha Vashyam, Near Neels Da Dhabha, Kalwad Road, Rajkot. Gujarat PAN: ACTFS5519D Vs. The Principal Commissioner of Income Tax, Rajkot-1, Rajkot. Assessee by : Shri Mehul Ranpura, A.R Revenue by : Shri Sanjeev Jain, CIT. D.R सुनवाई कᳱ तारीख/Date of Hearing : 29/06/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 07/09/2022 आदेश/O R D E R PER BENCH: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Principal Commissioner of Income Tax , Rajkot-1, Rajkot, dated 09/02/2022 arising in the matter of assessment order passed under s.263 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2017-18. ITA No. 109/Rjt/2022 A.Y. 2017-18 2 2. The only interconnected issue raised by the assessee is that the learned Principal CIT erred in holding the assessment framed under section 143(3) as erroneous insofar prejudicial to the interest of Revenue. 3. The brief facts are that the assessee is a partnership firm and engaged in the business of construction of commercial building. The assessment in the case of the assessee was completed under section 143(3) of the Act vide order dated 20-12- 2019 by accepting returned income at Rs. 2,43,67,160/- only. 4. The PCIT on examination of the assessment records of the assessee found that the assessee has claimed labour charges of Rs. 1,20,30,446/- whereas the TDS u/s 194C was deducted on Rs. 65,26,486/- only. There was no detail available on assessment record with respect to labour charges on which the provision of section 40(a)(ia) were attracted. Accordingly, the PCIT initiated the proceedings under section 263 of the Act vide show cause notice dated 16 January 2022 for non- verification of labour charges in context of section 40(a)(ia) read with section 194C of the Act. 5. The assessee in response to such show cause notice submitted that during the assessment proceeding detailed enquiries were made by the AO and the necessary details required by the AO were also duly filed. Thereafter, the AO after verification and application mind framed the assessment. Thus, the assessment order does not suffer from any error which requires the revision. The assessee further submitted that it has deducted TDS in the earlier year while making advance payment but the expenses for the labour charges were booked in the year under consideration. Therefore, the difference is arising with TDS amount in the amount of laobur charges claimed in year under consideration and the amount on which TDS deducted in the earlier year. Likewise, there are certain amount of labour charges claimed in the year under consideration which are not liable to TDS provision. ITA No. 109/Rjt/2022 A.Y. 2017-18 3 6. However, the learned PCIT rejected the submission of the assessee by holding that during the assessment proceeding labour charges was not examined by the AO. The claim of the assessee that labour charges paid in advance and TDS deducted on advance payment has nowhere been examined. As Such there was no enquiry made by the AO at all with regard to labour charges whether the same were paid through cash or bank, whether all the voucher in cash were less than of Rs. 20,000.00 or not. Thus, AO without carrying out necessary enquiries with regard to genuineness of labour charges and compliance of TDS provision on the same read with section 40(a)(ia) of the Act, framed the assessment which is erroneous insofar prejudicial to the interest of the revenue. Therefore, the learned PCIT exercising power conferred under section 263 set aside the order of the AO for fresh assessment. 7. Being aggrieved by the order of the learned PCIT, the assessee is in appeal before us. 8. The learned AR before us filed a paper book running from pages 1 to 92 and contended that the AO has framed the assessment after carrying out necessary verification during the assessment proceedings. 9. On the contrary, the learned DR vehemently supported the order of the authorities below. 10. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the present case relates whether the assessment order has been passed by Ld. AO without making inquiries or verification with respect to labour charges and TDS thereon as discussed above and hence the assessment is erroneous insofar prejudicial to the interest of the Revenue and thus requiring revision by Pr. CIT u/s 263 of the Act. ITA No. 109/Rjt/2022 A.Y. 2017-18 4 10.1 An inquiry made by the Assessing Officer, considered inadequate by the Commissioner of Income Tax, cannot make the order of the Assessing Officer erroneous. In our view, the order can be erroneous if the Assessing Officer fails to apply the law rightly on the facts of the case. As far as adequacy of inquiry is considered, there is no law which provides the extent of inquiries to be made by the Assessing Officer. It is Assessing Officer’s prerogative to make inquiry to the extent he feels proper. The Commissioner of Income Tax by invoking revisionary powers under section 263 of the Act cannot impose his own understanding of the extent of inquiry. There were a number of judgments by various Hon’ble High Courts in this regard. 10.2 Delhi High Court in the case of CIT Vs. Sunbeam Auto 332 ITR 167 (Del.), made a distinction between lack of inquiry and inadequate inquiry. The Hon’ble court held that where the AO has made inquiry prior to the completion of assessment, the same cannot be set aside u/s 263 of the Act on the ground of inadequate inquiry. The relevant observation of Hon’ble Delhi High Court reads as under: “12. ..... There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of “lack of inquiry”, that such a course of action would be open. ——— From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re- examine the accounts and determine the income himself at a higher figure. It ITA No. 109/Rjt/2022 A.Y. 2017-18 5 is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. 15. Thus, even the Commissioner conceded the position that the Assessing Officer made the inquiries, elicited replies and thereafter passed the assessment order. The grievance of the Commissioner was that the Assessing Officer should have made further inquires rather than accepting the explanation. Therefore, it cannot be said that it is a case of ‘lack of inquiry’.” 10.3 The Hon’ble Bombay High Court in case of Gabriel India Ltd. [1993] 203 ITR 108 (Bom), discussed the law on this aspect in length in the following manner: “The consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. 10.4 The Mumbai ITAT in the case of Sh. Narayan Tatu Rane Vs. ITO, I.T.A. No. 2690/2691/Mum/2016, dt. 06.05.2016 examined the scope of enquiry under Explanation 2(a) to section 263 in the following words:- “20. Further clause (a) of Explanation states that an order shall be deemed to be erroneous, if it has been passed without making enquiries or verification, which should have been made. In our considered view, this provison shall apply, if the order has been passed without making enquiries or verification which a reasonable and prudent officer shall have carried out in such cases, which means that the opinion formed by Ld Pr. CIT cannot be taken as final one, without scrutinising the nature of enquiry or verification carried out by the AO vis- à-vis its reasonableness in the facts and circumstances of the case. Hence, in our considered view, what is relevant for clause (a) of Explanation 2 to sec. 263 is whether the AO has passed the order after carrying our enquiries or verification, which a reasonable and prudent officer would have carried out or not. It does not authorise or give unfettered powers to the Ld Pr. CIT to revise each and every order, if in his opinion, the same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant.” ITA No. 109/Rjt/2022 A.Y. 2017-18 6 10.5 The Hon’ble Supreme Court in recent case of Principal Commissioner of Income-tax 2 v. Shree Gayatri Associates*[2019] 106 taxmann.com 31 (SC), held that where Pr. CIT passed a revised order after making addition to assessee's income under section 69A in respect of on-money receipts, however, said order was set aside by Tribunal holding that AO had made detailed enquiries in respect of such on-money receipts and said view was also confirmed by High Court, SLP filed against decision of High Court was liable to be dismissed. The facts of this case were that pursuant to search proceedings, assessee filed its return declaring certain unaccounted income. The Assessing Officer completed assessment by making addition of said amount to assessee's income. The Principal Commissioner passed a revised order under section 263 on ground that Assessing Officer had failed to carry out proper inquiries with respect to assessee's on money receipt. In appeal, the Tribunal took a view that Assessing Officer had carried out detailed inquiries which included assessee's on-money transactions and Tribunal, thus, set aside the revised order passed by Commissioner. The Hon’ble High Court upheld Tribunal's order. The Hon’ble Supreme Court while dismissing the SLP filed by the Department held as under:- “We have heard learned counsel for the Revenue and perused the documents on record. In particular, the Tribunal has in the impugned judgment referred to the detailed correspondence between Assessing Officer and the assessee during the course of assessment proceedings to come to a conclusion that the Assessing Officer had carried out detailed inquiries which includes assessee's on-money transactions. It was on account of these findings that the Tribunal was prompted to reverse the order of revision. No question of law arises. Tax Appeal is dismissed” 10.6 The Supreme Court in the another recent case of Principal Commissioner of Income-tax-2, Meerut v. Canara Bank Securities Ltd[2020] 114 taxmann.com 545 (SC), dismissed the Revenue’s SLP holding that 263 proceedings are invalid when AO had made enquiries and taken a plausible view in law, with the following observations: “Having heard learned counsel for the parties and having perused the documents on record, we see no reason to interfere with the view of the Tribunal. The question whether the income should be taxed as business income or as arising from the other source was a debatable issue. The Assessing Officer has taken a plausible view. More importantly, if the Commissioner was of the opinion that on the available facts from record it could be ITA No. 109/Rjt/2022 A.Y. 2017-18 7 conclusively held that income arose from other sources, he could and ought to have so held in the order of revision. There was simply no necessity to remand the proceedings to the Assessing Officer when no further inquiries were called for or directed” 10.7 From an analysis of the above judicial precedents, the principle which emerges is that the phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an Assessing Officer adopts one of the course permissible in law and it has resulted in loss of revenue; or where two views are possible and the Assessing Officer has taken one view with which the Commissioner of Income-tax does not agree, it cannot be treated as an erroneous order causing prejudice to the interests of the Revenue unless the view taken by the Assessing Officer is unsustainable in law, or the AO has completely omitted to make any enquiry altogether or the order demonstrates non-application of mind. 10.8 Now in the facts before us, in the case of the assessee, the AO during the course of assessment proceedings, made enquiries on several issue and after consideration of written submissions filed by the assessee and documents / evidence placed on record, framed the assessment under section 143(3) accepting the return of income. However on perusal of the notices under section 142(1) of the Act we find that no query was raised with regard to labour charges and compliance of TDS provision under the Act. Indeed the Pr. CIT initiated proceedings under section 263 of the Act on the ground that the AO has not made enquiries or verification in respect of advance from customer. 10.9 In view of the above and after considering the facts in totality, we hold that there is error in the assessment framed by the AO under section 143(3) causing prejudice to the interest of revenue. Thus, we do not find any reason to interfere in the revisional order passed by the learned PCIT. Hence the ground of appeal of the assessee is hereby dismissed. ITA No. 109/Rjt/2022 A.Y. 2017-18 8 11. In the result, the appeal filed by the assessee is dismissed. Order pronounced in the Court on 07/09/2022 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 07/09/2022 Manish