JK Tyre & Industries Ltd, Kolkata V. PCIT, KOLKATA

ITA 176/KOL/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5806 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 10-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Assessment record; Set aside
• Section: 37; 263; 143(3); 14A; 115JB; 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA {VIRTUAL COURT HEARING} (Before Shri P.M. Jagtap, Hon’ble Vice-President, KZ & Shri Aby T. Varkey, Hon’ble Judicial Member) ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd................................................................................................................Appellant 7, Council House Street Kolkata – 700 001 [PAN : AAACJ 6716 F] Vs. Principal Commissioner of Income Tax -1, Kolkata..........................................................Respondent Appearances by: Mrs. Priyanaka Salarpuria, A/R, appeared on behalf of the assessee. Shri Kalyan Nath, CIT, D/R, appearing on behalf of the Revenue. Date of concluding the hearing : October 8 th , 2021 Date of pronouncing the order : December 22 nd , 2021 ORDER Per P.M. Jagtap, Vice-President, KZ :- This appeal filed by the assessee is directed against the order of the ld. Principal Commissioner of Income Tax - 1, Kolkata, (hereinafter the ‘ld. Pr. CIT’), dt. 25/03/2021 passed u/s 263 of the Income Tax Act, 1961 (hereinafter ‘the Act’). 2. The assessee in the present case is a company engaged in the business of manufacturing automotive tyres, tubes and flaps and generation of power. The return of income for the year under consideration was filed by it on 28/11/2016 declaring total income of Rs.216,25,47,890/-. In the assessment completed u/s 143(3) of the Act vide order dt. 27/12/2018, the total income of the assessee was determined by the Assessing Officer at Rs.216,51,50,570/- after making addition of Rs.26,02,676/- on account of disallowance u/s 14A r.w.r. 8D. The record of the said assessment came to be examined by the concerned ld. Pr. CIT and on such examination, he was of the opinion that the order passed by the Assessing Officer u/s 143(3) of the Act suffered from the following errors:- i) The amount of Rs.132.87 Crores was debited by the assessee company to the profit & loss account under the head ‘current tax’ but while computing the book profit u/s 115JB of the Act, the amount of Rs.78,99,95,419/- only was added back under Explanation 1(a) to Section 115JB(2) of the Act, which was allowed by the Assessing Officer. ii) During the year under consideration, the assessee company had made donation of Rs.6,88,66,033/- on which deduction u/s 80G was claimed but in the computation of total instead of Rs.6,88,66,033/ iii) The assessee company had claimed weighted deduction u/s35(1) of the Act @ 175% on contribution of Rs.20,00,00,000/ Research Institute, New Delhi, but in the absence of From 3CF approval by the Central Government, it was not ascertainable as to whether the assessee was entitled for weighted deduction for the contribution made to t said institution. 3. Since the above errors in the order passed by the Assessing Officer u/s 143(3) of the Act according to the ld. Pr. CIT, revenue, he issued a notice requiring the assessee to showcause as to why the assessment order passed by the Assessing Officer should not be revised/modified or set aside by invoking provisions of Section 263 of the Act. In reply to the showcause notice issued by the ld. Pr. CIT u/s 263 of the Act, the following explanation was offered by the assessee in writing in respect of the three errors allegedly pointed out by the ld. Pr. CIT in the order of the Assessing Officer passed u/s 143(3) of the Act: “During the year your As of Rs. 513.23 Crores, which was arrived after provision for total current tax of Rs.132,76,60,000/- (includes Regular Tax of Rs. 76,89,77,000/ 83,000/-). As per the provisions of section 115JAA, Assessee Company has claimed, MAT Tax paid over and above regular tax payable, Rs. 55,86,83,000/ Since, the MAT tax is a part of total Current tax provisions, Assessee Company has added back NET current tax of Rs. 76,99,95,419/ details given below: Current Tax Provisions for the Year: Regular Tax Provision Taxes related to earlier years Add: MAT Tax Provision Current Tax for the Year Less: MAT Credit Entitlement Net Current Tax Provision for the Year Copy of ledger accounts of Provisions for current tax is enclosed herewith as Annexure '3’ While computing Book Profit for the year under consideration, as per Section 115JB of the Act, apart from other adjustments, appellant company has added back Provision for NET Current tax of Rs. 76,99,95,419/ Profit to compute Book Profit u/s 115JB. It will kindly be appreciated that MAT credit entitlement is an integral part of current year tax and hence Assessee Company has correctly reduced the same from provision for current tax to arrive provision for NET 2 computation of total income, the sum of Rs.5,25,31,000/- only was added back instead of Rs.6,88,66,033/- which was allowed by the Assessing Officer. iii) The assessee company had claimed weighted deduction u/s35(1) of the Act @ 175% on contribution of Rs.20,00,00,000/- made to M/s. Pushpawati Singhania , New Delhi, but in the absence of From 3CF approval by the Central Government, it was not ascertainable as to whether the assessee was entitled for weighted deduction for the contribution made to t Since the above errors in the order passed by the Assessing Officer u/s 143(3) of the Act according to the ld. Pr. CIT, made the said order prejudicial to the interest of the a notice requiring the assessee to showcause as to why the assessment order passed by the Assessing Officer should not be revised/modified or set aside by invoking provisions of Section 263 of the Act. In reply to the showcause notice . CIT u/s 263 of the Act, the following explanation was offered by the assessee in writing in respect of the three errors allegedly pointed out by the ld. Pr. CIT in the order of the Assessing Officer passed u/s 143(3) of the Act:- “During the year your Assessee Company had net profit after tax (but before Deferred Tax) of Rs. 513.23 Crores, which was arrived after provision for total current tax of (includes Regular Tax of Rs. 76,89,77,000/- + MAT Tax of Rs.55,86, rovisions of section 115JAA, Assessee Company has claimed, MAT Tax paid over and above regular tax payable, Rs. 55,86,83,000/- as MAT Credit Entitlement. Since, the MAT tax is a part of total Current tax provisions, Assessee Company has added ent tax of Rs. 76,99,95,419/- only in Net Profit to compute Book Profit as per Current Tax Provisions for the Year: Rs. 76,89,77,000/ Taxes related to earlier years Rs. 10,18,419/- n Rs. 86,83,000/- Current Tax for the Year Rs. 132,86,78,419/ Less: MAT Credit Entitlement Rs. 55,80,83,000/ Net Current Tax Provision for the Year Rs. 76,99,95,419/ Copy of ledger accounts of Provisions for current tax is enclosed herewith as While computing Book Profit for the year under consideration, as per Section 115JB of the Act, apart from other adjustments, appellant company has added back Provision for NET Current tax of Rs. 76,99,95,419/- (as per working give above) in Net ompute Book Profit u/s 115JB. It will kindly be appreciated that MAT credit entitlement is an integral part of current year tax and hence Assessee Company has correctly reduced the same from provision for current tax to arrive provision for NET ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. only was added back which was allowed by the Assessing Officer. iii) The assessee company had claimed weighted deduction u/s35(1) of the Act @ o M/s. Pushpawati Singhania , New Delhi, but in the absence of From 3CF-II granting approval by the Central Government, it was not ascertainable as to whether the assessee was entitled for weighted deduction for the contribution made to the Since the above errors in the order passed by the Assessing Officer u/s 143(3) of prejudicial to the interest of the a notice requiring the assessee to showcause as to why the assessment order passed by the Assessing Officer should not be revised/modified or set aside by invoking provisions of Section 263 of the Act. In reply to the showcause notice . CIT u/s 263 of the Act, the following explanation was offered by the assessee in writing in respect of the three errors allegedly pointed out by the ld. Pr. CIT sessee Company had net profit after tax (but before Deferred Tax) of Rs. 513.23 Crores, which was arrived after provision for total current tax of + MAT Tax of Rs.55,86, rovisions of section 115JAA, Assessee Company has claimed, MAT Tax as MAT Credit Entitlement. Since, the MAT tax is a part of total Current tax provisions, Assessee Company has added only in Net Profit to compute Book Profit as per Rs. 76,89,77,000/- Rs. 132,86,78,419/- Rs. 55,80,83,000/- Rs. 76,99,95,419/- Copy of ledger accounts of Provisions for current tax is enclosed herewith as While computing Book Profit for the year under consideration, as per Section 115JB of the Act, apart from other adjustments, appellant company has added back (as per working give above) in Net ompute Book Profit u/s 115JB. It will kindly be appreciated that MAT credit entitlement is an integral part of current year tax and hence Assessee Company has correctly reduced the same from provision for current tax to arrive provision for NET current tax Copy of relevant portion of Balance Sheet and Profit & Loss Account is enclosed herewith as Annexure '4'. It may kindly be noted the it is now well settled legal position that MAT credit entitlement is part of current tax and hence adjustment to be given section 115JB of the Act. The aforesaid issue that MAT credit entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in your Assessee's own cases for AY 2012 and circumstance, the Ld. Commissioner of Income Tax (A) appeal of your appellant company. Copy of relevant portion of CIT (A)'s order for AY 2014-15 is enclosed herewith as It may kindly be entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in JK Paper Ltd, i.e. your Assessee's group company's case, wherein, on similar facts and circumstance, t onpage 16 of his order (copy of relevant portion of order is enclosed herewith as Annexure '6') had allowed the appeal in favour of appellant by holding as under: 10.3 The contentions of the A examined. It is apparent that the MAT credit is a Deferred Tax and in view of Explanation to section 115JB, the book profit' is to be increased if tax is debited and reduced if the Deferred Tax is credite Consequently, the ground no. 4 is allowed in favour of the appellant. It may kindly be appreciated that in the aforesaid matter, on further appeal by Revenue before ITAT, Ahmedabad, the Hon' 2156/AHD/2013 & C.O. No. 37/Ahd/2014 (copy of order is enclosed herewith as Annexure '7' has dismissed the department appear vides Para 3 on page 10 of their order by holding as under: 23. It can be seen that and MAT credit entitlement has been separately shown at Rs. 6,13,84,689/ be further seen that the provision for current tax is shown at gross amount. The net amount comes to Rs. 1,27,17,218/ provision for current tax. If the assessee had shown the net amount of Rs. 1,27,17,218/- and added back the same for the computation of book profit, the revenue would have accepted this computation. But for th and set guidelines both the amounts were shown separately. Considering these facts in totality, we do not find any logic in making the addition of Rs. 6,13,84,689/ computing the book profit the same has to be deleted Ground No. dismissed. In view of the aforesaid submissions, legal positions and facts on records, it is apparent that a Company which is required to pay MAT has to first charge the same in Profit & Loss Accounts, by including the same in current tax not a charge on current year profit, the Company has to credit the Profit & Loss Account by MAT credit entitlement. It is therefore submitted that Assessee Company has correctly added back NET current tax of Rs. 76,99,95,419/ compute book profit u/S 115JB and hence order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue. We therefore, request your goodself to kindly drop the proceedings u/s 263 of the Act. 3 Copy of relevant portion of Balance Sheet and Profit & Loss Account is Annexure '4'. It may kindly be noted the it is now well settled legal position that MAT credit entitlement is part of current tax and hence adjustment to be given as per explanation to section 115JB of the Act. The aforesaid issue that MAT credit entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in your Assessee's own cases for AY 2012-13. AY 2013- 14 & AY 2014-15 where and circumstance, the Ld. Commissioner of Income Tax (A)-15, Kolkata, has allowed the appeal of your appellant company. Copy of relevant portion of CIT (A)'s order for AY 15 is enclosed herewith as Annexure '5'. It may kindly be further noted that the aforesaid issue that MAT credit entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in JK Paper Ltd, i.e. your Assessee's group company's case, wherein, on similar facts and circumstance, the Ld. Commissioner of Income Tax (A)-1, Surat, vide Para 10.3 onpage 16 of his order (copy of relevant portion of order is enclosed herewith as Annexure '6') had allowed the appeal in favour of appellant by holding as under: 10.3 The contentions of the Assessing Officer as well as the appellant have been examined. It is apparent that the MAT credit is a Deferred Tax and in view of Explanation to section 115JB, the book profit' is to be increased if tax is debited and reduced if the Deferred Tax is credited in accordance with clause h and clause viii of Explanation Consequently, the ground no. 4 is allowed in favour of the appellant. It may kindly be appreciated that in the aforesaid matter, on further appeal by Revenue before ITAT, Ahmedabad, the Hon'ble ITAT, 'C' Bench, Ahmedabad in ITA No: 2156/AHD/2013 & C.O. No. 37/Ahd/2014 (copy of order is enclosed herewith as has dismissed the department appear vides Para 3 on page 10 of their order 23. It can be seen that provision for current tax is shown at Rs. 7,41,01,907/ and MAT credit entitlement has been separately shown at Rs. 6,13,84,689/ be further seen that the provision for current tax is shown at gross amount. The net amount comes to Rs. 1,27,17,218/-, if the MAT credit entitlement is reduced from provision for current tax. If the assessee had shown the net amount of Rs. and added back the same for the computation of book profit, the revenue would have accepted this computation. But for the accounting principles and set guidelines both the amounts were shown separately. Considering these facts in totality, we do not find any logic in making the addition of Rs. 6,13,84,689/ computing the book profit the same has to be deleted Ground No. In view of the aforesaid submissions, legal positions and facts on records, it is apparent that a Company which is required to pay MAT has to first charge the same in Profit & Loss Accounts, by including the same in current tax not a charge on current year profit, the Company has to credit the Profit & Loss Account by MAT credit entitlement. It is therefore submitted that Assessee Company has correctly added back NET current tax of Rs. 76,99,95,419/ compute book profit u/S 115JB and hence order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue. We therefore, request your goodself to kindly drop the proceedings u/s 263 of the Act. ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. Copy of relevant portion of Balance Sheet and Profit & Loss Account is It may kindly be noted the it is now well settled legal position that MAT credit as per explanation to section 115JB of the Act. The aforesaid issue that MAT credit entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in your 15 wherein, on similar facts 15, Kolkata, has allowed the appeal of your appellant company. Copy of relevant portion of CIT (A)'s order for AY further noted that the aforesaid issue that MAT credit entitlement should be reduced from Net Profit to Compute Book Profit u/s 115JB, is duly covered in JK Paper Ltd, i.e. your Assessee's group company's case, wherein, on similar 1, Surat, vide Para 10.3 onpage 16 of his order (copy of relevant portion of order is enclosed herewith as Annexure ssessing Officer as well as the appellant have been examined. It is apparent that the MAT credit is a Deferred Tax and in view of Explanation to section 115JB, the book profit' is to be increased if tax is debited and reduced if the d in accordance with clause h and clause viii of Explanation -I. It may kindly be appreciated that in the aforesaid matter, on further appeal by ble ITAT, 'C' Bench, Ahmedabad in ITA No: 2156/AHD/2013 & C.O. No. 37/Ahd/2014 (copy of order is enclosed herewith as has dismissed the department appear vides Para 3 on page 10 of their order provision for current tax is shown at Rs. 7,41,01,907/- and MAT credit entitlement has been separately shown at Rs. 6,13,84,689/- It can be further seen that the provision for current tax is shown at gross amount. The net if the MAT credit entitlement is reduced from provision for current tax. If the assessee had shown the net amount of Rs. and added back the same for the computation of book profit, the e accounting principles and set guidelines both the amounts were shown separately. Considering these facts in totality, we do not find any logic in making the addition of Rs. 6,13,84,689/- for computing the book profit the same has to be deleted Ground No. 1 is accordingly In view of the aforesaid submissions, legal positions and facts on records, it is apparent that a Company which is required to pay MAT has to first charge the same in Profit & Loss Accounts, by including the same in current tax, since MAT is not a charge on current year profit, the Company has to credit the Profit & Loss Account by MAT credit entitlement. It is therefore submitted that Assessee Company has correctly added back NET current tax of Rs. 76,99,95,419/- in net profit to compute book profit u/S 115JB and hence order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue. We therefore, request your goodself to kindly drop the proceedings u/s 263 of the Act. 2. Further the a claiming deduction of Rs. 354,33,017/ has added back Rs. 525,31,000/ order the AO allowed the same. Thus res to the tune of Rs. 163,35,033/ In this connection, it is submitted respectfully that the order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue and while filing the Return of Income your Assessee Company had already added back Rs. 688,66,033/ Computation of Income is enclosed herewith as Annexure '1'. Details of donation made u/s 80G and corresponding do income are enclosed herewith as Annexure '8'. From perusal of aforesaid details, your goodself will kindly observe that during the year, Assessee Company has paid donation of Rs. 5,25,31,000/ offered the same for tax vide para 2b (ii) of Computation of Income and claimed deduction of Rs.2,72,65,500/ contributed a sum of Rs. 4,75,53,518/ (CSR) and as per the provisions of se vide para 2h of Computation of Income. However, CSR contribution of Rs. 1,63,35,033/- was eligible and specifically allowable u/s 80G of the Act, accordingly your Assessee Company has correctly claimed Rs. 81,6 may kindly be, therefore, appreciated that during the year Assessee Company has added back total Rs. 6,88,66,033/ 1,63,35,033/- as CSR) and claimed total deduction of Rs. 3,54,33,017/ 2,72,65,500/- + Rs. 81,67,5 In view of aforesaid submissions and facts, your goodself will kindly appreciate that Assessee Company has correctly added back Rs. 525,31,000/ donation and Rs. 475,53,518/ hence order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest drop the proceedings u/s 263 3. The assessee company claimed Act, 1961 @175% on contribution of Rs. 20,00,00,000/ Singhania Research Institute, New Delhi. The Institute has been approved in the category of Others Institute for the purpose of section 3 Rule 5C & 50 wef 01/04/2001. As per the provisions of Rule 5C & 5D of the Rules, the institute has to make an application on yearly basis in the prescribed form (form 3CF-II) to the Central 3CF-Il granting approval by the guarantee Institution was eligible for 2016-17. In this connection, it is submitted respectfully that the passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue. During the year, Assessee Company had contributed a sum of Rs. 2 crores (as against Rs.20 Crores alleged in impugned notice) to M/s Pushpawati Si Research Institute (PSRI), New Delhi and claimed weighted deduction @175% of Rs.3.50 Crores. 4 2. Further the assessee company made donation of Rs. 688,66,033/ claiming deduction of Rs. 354,33,017/-. in computation of total income, the assessee has added back Rs. 525,31,000/- instead of Rs. 688,66,033/- and in assessment order the AO allowed the same. Thus resulted in under assessment of total income to the tune of Rs. 163,35,033/-. In this connection, it is submitted respectfully that the order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of filing the Return of Income your Assessee Company had already added back Rs. 688,66,033/- for claiming deduction of Rs. 354,33, 017/ Computation of Income is enclosed herewith as Annexure '1'. Details of donation made u/s 80G and corresponding donation expenses added back in computation of income are enclosed herewith as Annexure '8'. From perusal of aforesaid details, your goodself will kindly observe that during the year, Assessee Company has paid donation of Rs. 5,25,31,000/ me for tax vide para 2b (ii) of Computation of Income and claimed deduction of Rs.2,72,65,500/- u/s 80G. Further, Assessee Company has also contributed a sum of Rs. 4,75,53,518/- towards Corporate Social Responsibility (CSR) and as per the provisions of section 37 of the Act, offered the same for tax vide para 2h of Computation of Income. However, CSR contribution of Rs. was eligible and specifically allowable u/s 80G of the Act, accordingly your Assessee Company has correctly claimed Rs. 81,67,517- u/s 80G of the Act. It may kindly be, therefore, appreciated that during the year Assessee Company has added back total Rs. 6,88,66,033/- (Rs. 5,25,31,000/- as donation + Rs. as CSR) and claimed total deduction of Rs. 3,54,33,017/ + Rs. 81,67,517/-) of the Act. In view of aforesaid submissions and facts, your goodself will kindly that Assessee Company has correctly added back Rs. 525,31,000/ Rs. 475,53,518/- as CSR expenditure in Computat 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of revenue. We therefore, request your goodself to kindly drop the proceedings u/s 263 of the Act. 3. The assessee company claimed weighted deduction u/s 35 (1) of the I. T 1961 @175% on contribution of Rs. 20,00,00,000/- made to M/s Pushpawati Research Institute, New Delhi. The Institute has been approved in the Others Institute for the purpose of section 35 (V)(ii) of t ef 01/04/2001. As per the provisions of Rule 5C & 5D of the Rules, make an application on yearly basis in the prescribed form II) to the Central Govt. for its approval. However, in the absence of Form Il granting approval by the Central Govt. it cannot be ascertained whether the guarantee Institution was eligible for deduction u/s 35(1) (ii) of the Act for the AY In this connection, it is submitted respectfully that the order dt. 27/12/2018 u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of the year, Assessee Company had contributed a sum of Rs. 2 crores Crores alleged in impugned notice) to M/s Pushpawati Si (PSRI), New Delhi and claimed weighted deduction @175% of ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. ssessee company made donation of Rs. 688,66,033/- for . in computation of total income, the assessee and in assessment ulted in under assessment of total income In this connection, it is submitted respectfully that the order dt. 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of filing the Return of Income your Assessee Company had already for claiming deduction of Rs. 354,33, 017/-. Copy of Computation of Income is enclosed herewith as Annexure '1'. Details of donation nation expenses added back in computation of From perusal of aforesaid details, your goodself will kindly observe that during the year, Assessee Company has paid donation of Rs. 5,25,31,000/- and me for tax vide para 2b (ii) of Computation of Income and claimed u/s 80G. Further, Assessee Company has also towards Corporate Social Responsibility ction 37 of the Act, offered the same for tax vide para 2h of Computation of Income. However, CSR contribution of Rs. was eligible and specifically allowable u/s 80G of the Act, accordingly u/s 80G of the Act. It may kindly be, therefore, appreciated that during the year Assessee Company has as donation + Rs. as CSR) and claimed total deduction of Rs. 3,54,33,017/- (Rs. In view of aforesaid submissions and facts, your goodself will kindly that Assessee Company has correctly added back Rs. 525,31,000/- as as CSR expenditure in Computation of Income and 27/12/2018 passed u/s 143(3) by AO is neither erroneous nor of revenue. We therefore, request your goodself to kindly weighted deduction u/s 35 (1) of the I. T made to M/s Pushpawati Research Institute, New Delhi. The Institute has been approved in the 5 (V)(ii) of the Act read with ef 01/04/2001. As per the provisions of Rule 5C & 5D of the Rules, make an application on yearly basis in the prescribed form the absence of Form it cannot be ascertained whether the deduction u/s 35(1) (ii) of the Act for the AY order dt. 27/12/2018 u/s 143(3) by AO is neither erroneous nor prejudicial to the interest of the year, Assessee Company had contributed a sum of Rs. 2 crores Crores alleged in impugned notice) to M/s Pushpawati Singhania (PSRI), New Delhi and claimed weighted deduction @175% of It may kindly be noted that PSRI is a medical research Institution and vide Notification dt. 12/04/2007, duly approved / notified u/s 35(1)(i) of the Act. of Notification is enclosed herewith as Rule 5C of the Income Tax Rules defines the following guidelines, form and manner in respect of approval under clause (ii) and clause (ii) of sub section 35........ From perusal of order to get the approval us 35(1)(ii), Form 3CF-II and after being convinced with the application filed, the Government of India grants approval and notifie approval shall be valid for perpetual period unless the Central Government withdraw it. It will kindly be appreciated that there is no need to file application in Form 3CF -II every year. As may withdraw the approval granted under clause (ii) of sub 35 if it is satisfied that institution has ceased its carried out in accordance with order to withdraw the approval u/s Rule 5D of the Income Tax Rules provides the following which approval is to be granted to a research association under clause (ii) or clause (iii) of sub-section (1) of section 35..... From perusal of aforesaid provisions, it may ki Institute required to certain details relating to audit reports, statement of sum received and sum applied etc. It is submitted that PSRI is filing the said details as required by Rule 5D each year. Copy of acknowledgem relating to AY 2016-17 In view of aforesaid submissions, facts and provisions of Income Tax Rules, your goodself will kindly appreciate that during the year, PSRI wa notified us 35(1)(c) of the Act. Assessee Company therefore, has correctly claimed weighted deduction @175% of Rs. 3.50 Crores against Rs. 2.00 Crores contributed to PSRI and hence order dt. 27/12/2018 passed u erroneous nor prejudicial to the interest of revenue. We therefore, request your goodself to kindly drop the proceedings u/s 263 of the Act. "An opportunity of hearing, personally or through video conferencing, may be granted to the Assessee to explain the submissions, before drawing any adverse inference, for which act of kindness we shall ever remain grateful'. Hope, you shall find the above in order. We request your goodself to kindly drop the proceedings u/s 263 of the Act." 5 It may kindly be noted that PSRI is a medical research Institution and vide dt. 12/04/2007, duly approved / notified u/s 35(1)(i) of the Act. enclosed herewith as Annexure '9'. Rule 5C of the Income Tax Rules defines the following guidelines, form and respect of approval under clause (ii) and clause (ii) of sub From perusal of aforesaid provisions, it may kindly be noted that in get the approval us 35(1)(ii), The applicant has to make an application in and after being convinced with the application filed, the Government of India grants approval and notified the applicant as eligible u/s 35(1 approval shall be valid for perpetual period unless the Central Government It will kindly be appreciated that there is no need to file application in every year. As per sub-rule (11) of Rule 5C, the Central Government approval granted under clause (ii) of sub-section (1) of section 35 if it is satisfied that the research association or university or college or other institution has ceased its activities or its activities are not genuine or are not being carried out in accordance with all or any of the conditions under rule 5D. No such order to withdraw the approval u/s 35(1)(ii) has been passed in PSRI case. Rule 5D of the Income Tax Rules provides the following conditions subject to approval is to be granted to a research association under clause (ii) or clause section (1) of section 35..... From perusal of aforesaid provisions, it may kindly be noted required to maintain separate Books of Account and to file, each year, relating to audit reports, statement of sum received and sum applied that PSRI is filing the said details as required by Rule 5D each acknowledgement dt. 19/09/2016 of details filed for FY 2015 17 is enclosed herewith as Annexure '10'. In view of aforesaid submissions, facts and provisions of Income Tax Rules, goodself will kindly appreciate that during the year, PSRI wa us 35(1)(c) of the Act. Assessee Company therefore, has correctly claimed deduction @175% of Rs. 3.50 Crores against Rs. 2.00 Crores contributed hence order dt. 27/12/2018 passed u/s 143(3) by AO is neither prejudicial to the interest of revenue. We therefore, request your drop the proceedings u/s 263 of the Act. "An opportunity of hearing, personally or through video conferencing, may be granted to the Assessee to explain the aforesaid facts and submissions, before drawing any adverse inference, for which act of kindness we shall ever remain grateful'. Hope, you shall find the above in order. We request your goodself to kindly proceedings u/s 263 of the Act." ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. It may kindly be noted that PSRI is a medical research Institution and vide dt. 12/04/2007, duly approved / notified u/s 35(1)(i) of the Act. Copy Rule 5C of the Income Tax Rules defines the following guidelines, form and respect of approval under clause (ii) and clause (ii) of sub-section (1) of aforesaid provisions, it may kindly be noted that in The applicant has to make an application in and after being convinced with the application filed, the Government of applicant as eligible u/s 35(1) (ii). The said approval shall be valid for perpetual period unless the Central Government It will kindly be appreciated that there is no need to file application in (11) of Rule 5C, the Central Government section (1) of section the research association or university or college or other tivities are not genuine or are not being all or any of the conditions under rule 5D. No such 35(1)(ii) has been passed in PSRI case. conditions subject to approval is to be granted to a research association under clause (ii) or clause ndly be noted that Assessee maintain separate Books of Account and to file, each year, relating to audit reports, statement of sum received and sum applied that PSRI is filing the said details as required by Rule 5D each ent dt. 19/09/2016 of details filed for FY 2015-16 In view of aforesaid submissions, facts and provisions of Income Tax Rules, goodself will kindly appreciate that during the year, PSRI was duly approved / us 35(1)(c) of the Act. Assessee Company therefore, has correctly claimed deduction @175% of Rs. 3.50 Crores against Rs. 2.00 Crores contributed 143(3) by AO is neither prejudicial to the interest of revenue. We therefore, request your "An opportunity of hearing, personally or through video conferencing, aforesaid facts and submissions, before drawing any adverse inference, for which act of kindness Hope, you shall find the above in order. We request your goodself to kindly 4. The submissions made by the assessee in writing as above did not find favour with the ld. Pr. CIT who rejected the same no. 5 of his impugned order passed u/s 263: “5. I have considered the facts of the case and assessee and the details available on record. On perusal of the assessment record, it was found that the assessee company in its computation of total income has added back Rs.78,99,95,419/- under explanation 1(a) to secti Rs.132.87 crores was debited to the profit & loss account under the head current tax. The AO should have added back Rs.132.87 crores instead of Rs.78.99,95,419/ assessment of Book profit of Rs.53,87,04,581/ observed which having MAT effect of Rs. 11,49,68,176/ made donation of Rs.6,88,66,033/ computation of total income the assessee has Rs.6,88,66,033/- and in the assessment order the AO allowed the same. Moreover the assessee company claimed weighted deduction u/s.35(1) of the I.T. Act, 1961 @175% on contribution of Rs.2,00,00,000/ New Delhi. As per the provisions of Rule 5C & 5D of the Rules, the institution has to make an application in the prescribed form (Form However, in absence of required app ascertained whether the contribution to the said Institution was eligible for deduction u/s.35(1)(ii) of the Act for A.Y. 2016 making enquiries or verifi (a) and Clause (b) of Explanation it is held that the assessment order is erroneous in so far as it is prejudicial to the interest of revenue.” 5. For the reasons given above and by relying on certain judicial pronouncement referred to and discussed in his impugned order, the ld. Pr. CIT set aside the order of the Assessing Officer dt. 27/12/2018 passed u/s 143(3) of the Act by treatin erroneous as well as prejudicial to the interest of the revenue with a direction to the Assessing Officer to pass fresh assessment order after considering the issues raised by him as per law and after giving an opportunity of being heard to t by the order passed by the ld. Pr. CIT passed u/s 263, the assessee has preferred this appeal before the Tribunal. 6. The ld. Counsel for the assessee mainly reiterated before us the submissions made on behalf of the assessee during the course of proceedings u/s 263 of the Act before the ld. Pr. CIT. As regards the first error allegedly pointed out by the ld. Pr. CIT in the order passed u/s 143(3) of the Act, and loss account of the assessee company placed at page no. 15 of the paper book to point out that there was a MAT credit entitlement of Rs.55.87 Crores available to assessee company and after exhausting the same against the current tax of Rs.132.87 6 made by the assessee in writing as above did not find favour who rejected the same for the following reasons given in paragraph no. 5 of his impugned order passed u/s 263:- “5. I have considered the facts of the case and gone through the submission of the assessee and the details available on record. On perusal of the assessment record, it was found that the assessee company in its computation of total income has added back under explanation 1(a) to section 115JB(2) whereas an amount of Rs.132.87 crores was debited to the profit & loss account under the head current tax. The AO should have added back Rs.132.87 crores instead of Rs.78.99,95,419/ assessment of Book profit of Rs.53,87,04,581/- (Rs. 132,87,00,000/-(-) Rs.78,99,95,419/ observed which having MAT effect of Rs. 11,49,68,176/-. Further the assessee company made donation of Rs.6,88,66,033/- for claiming deduction of Rs.3,54,33,017/ computation of total income the assessee has added back Rs.5,25,31,000/ and in the assessment order the AO allowed the same. Moreover the assessee company claimed weighted deduction u/s.35(1) of the I.T. Act, 1961 @175% on contribution of Rs.2,00,00,000/- made to M/s. Pushpawati Singhania Research Institute, New Delhi. As per the provisions of Rule 5C & 5D of the Rules, the institution has to make an application in the prescribed form (Form-3CF-II) to the Central Govt. for its approval. However, in absence of required approval by the Central Govt. on record it cannot be ascertained whether the contribution to the said Institution was eligible for deduction u/s.35(1)(ii) of the Act for A.Y. 2016-17. The A.O. has passed the assessment order without making enquiries or verification which should have been made in the instant case. Clause (a) and Clause (b) of Explanation-2 to Section 263(1) is attracted in this case. Accordingly, it is held that the assessment order is erroneous in so far as it is prejudicial to the interest For the reasons given above and by relying on certain judicial pronouncement referred to and discussed in his impugned order, the ld. Pr. CIT set aside the order of the Assessing Officer dt. 27/12/2018 passed u/s 143(3) of the Act by treatin erroneous as well as prejudicial to the interest of the revenue with a direction to the Assessing Officer to pass fresh assessment order after considering the issues raised by him as per law and after giving an opportunity of being heard to the assessee. by the order passed by the ld. Pr. CIT passed u/s 263, the assessee has preferred this The ld. Counsel for the assessee mainly reiterated before us the submissions made on behalf of the assessee during the course of proceedings u/s 263 of the Act before the ld. Pr. CIT. As regards the first error allegedly pointed out by the ld. Pr. CIT in he order passed u/s 143(3) of the Act, she invited our attention to the copy of the profit and loss account of the assessee company placed at page no. 15 of the paper book to point out that there was a MAT credit entitlement of Rs.55.87 Crores available to assessee company and after exhausting the same against the current tax of Rs.132.87 ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. made by the assessee in writing as above did not find favour for the following reasons given in paragraph gone through the submission of the assessee and the details available on record. On perusal of the assessment record, it was found that the assessee company in its computation of total income has added back on 115JB(2) whereas an amount of Rs.132.87 crores was debited to the profit & loss account under the head current tax. The AO should have added back Rs.132.87 crores instead of Rs.78.99,95,419/-. Hence, under ) Rs.78,99,95,419/-) is . Further the assessee company for claiming deduction of Rs.3,54,33,017/-. In added back Rs.5,25,31,000/- instead of and in the assessment order the AO allowed the same. Moreover the assessee company claimed weighted deduction u/s.35(1) of the I.T. Act, 1961 @175% on shpawati Singhania Research Institute, New Delhi. As per the provisions of Rule 5C & 5D of the Rules, the institution has to make an II) to the Central Govt. for its approval. roval by the Central Govt. on record it cannot be ascertained whether the contribution to the said Institution was eligible for deduction 17. The A.O. has passed the assessment order without cation which should have been made in the instant case. Clause 2 to Section 263(1) is attracted in this case. Accordingly, it is held that the assessment order is erroneous in so far as it is prejudicial to the interest For the reasons given above and by relying on certain judicial pronouncement referred to and discussed in his impugned order, the ld. Pr. CIT set aside the order of the Assessing Officer dt. 27/12/2018 passed u/s 143(3) of the Act by treating the same as erroneous as well as prejudicial to the interest of the revenue with a direction to the Assessing Officer to pass fresh assessment order after considering the issues raised by he assessee. Aggrieved by the order passed by the ld. Pr. CIT passed u/s 263, the assessee has preferred this The ld. Counsel for the assessee mainly reiterated before us the submissions made on behalf of the assessee during the course of proceedings u/s 263 of the Act before the ld. Pr. CIT. As regards the first error allegedly pointed out by the ld. Pr. CIT in she invited our attention to the copy of the profit and loss account of the assessee company placed at page no. 15 of the paper book to point out that there was a MAT credit entitlement of Rs.55.87 Crores available to the assessee company and after exhausting the same against the current tax of Rs.132.87 Crores the net amount added back while computing the book u/s 115JB of the Act. She contended that since both these figures of current tax and MAT credit entitlement w duly and clearly reflected in the profit and loss account of the assessee company, the computation of book profit u/s 115JB by adding back only the net amount was correctly made by the assessee and accepted by the Assessing Officer and there was no err the order of the Assessing Officer passed u/s 143(3) of the Act as allegedly pointed out by the ld. Pr. CIT. 7. As regards the second error allegedly pointed out by the ld. Pr. CIT in the order of the Assessing Officer passed u/s 143(3), the ld. Cou attention to the relevant details given at page no. 99 of the paper book to point out that out of the total donations of Rs.6,88,66,033/ year under consideration, the sum Corporate Social Responsibility (CSR). She submitted that the total amount spent by the assessee company on CSR during the year under consideration was Rs.4,75,53,518/ She then invited our attention to the computat company place at page no. 122 & 123 of the paper book to point out that both the amounts of donations and CSR Rs.4,75,53,518/- were added back by the assessee company and t in the order of the Assessing Officer passed u/s 143(3) on this issue also as allegedly pointed out by the ld. Pr. CIT. She contended that relevant details available on record before the Assessin amount of donation of Rs.6,88,66,033/ computation of total income, there was no error in the order of the Assessing Officer in allowing the same. 8. As regards the third error for the assessee submitted that the approval in Form 3CF Government is required to be obtained by the Institute only once at the initial stage and the same was duly obtained by M/s Delhi, in the year 2007. She invited out attention to the provisions of Rule 5C & 5D of the Income Tax Rules, 1962 (hereinafter the ‘Rules’) to point out that the concerned Institution after obtaining approval giving certain details and such statement was duly filed by the M/s. Pushpawati Singhania Research Institute for the year under consideration on 29/09/2016 with the 7 Crores the net amount added back while computing the book u/s 115JB of the Act. She contended that since both these figures of current tax and MAT credit entitlement w duly and clearly reflected in the profit and loss account of the assessee company, the computation of book profit u/s 115JB by adding back only the net amount was correctly made by the assessee and accepted by the Assessing Officer and there was no err the order of the Assessing Officer passed u/s 143(3) of the Act as allegedly pointed out As regards the second error allegedly pointed out by the ld. Pr. CIT in the order of the Assessing Officer passed u/s 143(3), the ld. Counsel for the assessee invited our attention to the relevant details given at page no. 99 of the paper book to point out that out of the total donations of Rs.6,88,66,033/- made by the assessee company during the year under consideration, the sum of Rs. 1,63,35,033/- was reflected under the head Corporate Social Responsibility (CSR). She submitted that the total amount spent by the assessee company on CSR during the year under consideration was Rs.4,75,53,518/ She then invited our attention to the computation of total income of the assessee company place at page no. 122 & 123 of the paper book to point out that both the amounts of donations and CSR expenditure to the tune of Rs.5,25,31,000/ were added back by the assessee company and there was thus no error in the order of the Assessing Officer passed u/s 143(3) on this issue also as allegedly pointed out by the ld. Pr. CIT. She contended that this position was very clear from the relevant details available on record before the Assessing Officer and since the entire amount of donation of Rs.6,88,66,033/- was added back to the assessee company to the computation of total income, there was no error in the order of the Assessing Officer in As regards the third error allegedly pointed out by the ld. Pr. CIT, the ld. Counsel for the assessee submitted that the approval in Form 3CF-II from the Central Government is required to be obtained by the Institute only once at the initial stage and the same was duly obtained by M/s. Pushpawati Singhania Research Institute, New Delhi, in the year 2007. She invited out attention to the provisions of Rule 5C & 5D of the Income Tax Rules, 1962 (hereinafter the ‘Rules’) to point out that the concerned Institution after obtaining approval initially is only required to submit a statement giving certain details and such statement was duly filed by the M/s. Pushpawati Singhania Research Institute for the year under consideration on 29/09/2016 with the ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. Crores the net amount added back while computing the book u/s 115JB of the Act. She contended that since both these figures of current tax and MAT credit entitlement were duly and clearly reflected in the profit and loss account of the assessee company, the computation of book profit u/s 115JB by adding back only the net amount was correctly made by the assessee and accepted by the Assessing Officer and there was no error in the order of the Assessing Officer passed u/s 143(3) of the Act as allegedly pointed out As regards the second error allegedly pointed out by the ld. Pr. CIT in the order of nsel for the assessee invited our attention to the relevant details given at page no. 99 of the paper book to point out that made by the assessee company during the was reflected under the head Corporate Social Responsibility (CSR). She submitted that the total amount spent by the assessee company on CSR during the year under consideration was Rs.4,75,53,518/-. ion of total income of the assessee company place at page no. 122 & 123 of the paper book to point out that both the expenditure to the tune of Rs.5,25,31,000/- and here was thus no error in the order of the Assessing Officer passed u/s 143(3) on this issue also as allegedly this position was very clear from the g Officer and since the entire was added back to the assessee company to the computation of total income, there was no error in the order of the Assessing Officer in legedly pointed out by the ld. Pr. CIT, the ld. Counsel II from the Central Government is required to be obtained by the Institute only once at the initial stage and . Pushpawati Singhania Research Institute, New Delhi, in the year 2007. She invited out attention to the provisions of Rule 5C & 5D of the Income Tax Rules, 1962 (hereinafter the ‘Rules’) to point out that the concerned initially is only required to submit a statement giving certain details and such statement was duly filed by the M/s. Pushpawati Singhania Research Institute for the year under consideration on 29/09/2016 with the concerned DIT (Exemption) (copy placed at that this position was clearly brought to the notice of the ld. Pr. CIT in the submissions made in response to the notice issue by the ld. Pr. CIT u/s 263 of the Act but without pointing out any infirmity therein by exercising powers u/s 263 of the Act on the ground that the claim of the assessee for weighed deduction was accepted by the Assessing Officer without making enquiries or verification. She contended issues were accepted by the Assessing Officer on the basis of material available on record the ld. Pr. CIT was not justified in setting aside the order of the Assessing Officer on these issues for the alleged lack enquiry without even enquiries or verification the Assessing Officer should have done and failed to do. She contended that elaborate submissions made on behalf of the assessee company in the required showcause notice issued by the ld. Pr. CIT u/s 263 of the Act clearly pointing out that there were no errors in the order of the Assessing Officer on merit as allegedly pointed out in the notice issued u/s 263. She contended that the ld. Pr. CIT, however, did not find any fault in the submissions so made by the assessee company and proceeded arbitrarily to set aside the order of the Assessing Officer by holding the same as erroneous as well as prejudicial to the interest of the revenue. She contended that the impugned order passed by the ld. Pr. CIT passed u/s 263 of the Act, therefore, is not sustainable in law as well as in the facts of the case and the same is liable to be cancelled. 9. The ld. D/R strongly supported the order passed by the ld. Pr. CIT u/s 263. He contended that no enquiry or verification was made by the Assessing Officer during the course of assessment proceedings on all three issues pointed out by the ld. Pr. CIT in his impugned order and since the claim of the assessee on these three issues was accepted by the Assessing Officer in the assessment order completed u/s 143(3) of the Act without making such enquiry or verification which was called for in the facts and circumstances. It was a case of lack of enquiry and the order passed by the Assessing Officer u/s 143(3) was rightly set aside by the ld. Pr. CIT vide his impugned order passed u/s 263 by treating the same erroneous and prejudicial to the interest of the revenue. 10. We have heard the rival submission and also perused the relevant material available on record. In the present case the assessment order for the year under 8 concerned DIT (Exemption) (copy placed at page 129 of the paper book). She contended that this position was clearly brought to the notice of the ld. Pr. CIT in the submissions made in response to the notice issue by the ld. Pr. CIT u/s 263 of the Act but without pointing out any infirmity therein he proceeded to set aside the order passed u/s 143(3) by exercising powers u/s 263 of the Act on the ground that the claim of the assessee for weighed deduction was accepted by the Assessing Officer without making enquiries or She contended that since the claim of the assessee in respect of the three issues were accepted by the Assessing Officer on the basis of material available on record the ld. Pr. CIT was not justified in setting aside the order of the Assessing Officer r the alleged lack enquiry without even pointing out that what enquiries or verification the Assessing Officer should have done and failed to do. She contended that elaborate submissions made on behalf of the assessee company in the ce issued by the ld. Pr. CIT u/s 263 of the Act clearly pointing out that there were no errors in the order of the Assessing Officer on merit as allegedly pointed out in the notice issued u/s 263. She contended that the ld. Pr. CIT, however, did ny fault in the submissions so made by the assessee company and proceeded arbitrarily to set aside the order of the Assessing Officer by holding the same as erroneous as well as prejudicial to the interest of the revenue. She contended that the der passed by the ld. Pr. CIT passed u/s 263 of the Act, therefore, is not sustainable in law as well as in the facts of the case and the same is liable to be The ld. D/R strongly supported the order passed by the ld. Pr. CIT u/s 263. He contended that no enquiry or verification was made by the Assessing Officer during the course of assessment proceedings on all three issues pointed out by the ld. Pr. CIT in his impugned order and since the claim of the assessee on these three issues was accepted by the Assessing Officer in the assessment order completed u/s 143(3) of the Act without making such enquiry or verification which was called for in the facts and stances. It was a case of lack of enquiry and the order passed by the Assessing Officer u/s 143(3) was rightly set aside by the ld. Pr. CIT vide his impugned order by treating the same erroneous and prejudicial to the interest of the We have heard the rival submission and also perused the relevant material available on record. In the present case the assessment order for the year under ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. page 129 of the paper book). She contended that this position was clearly brought to the notice of the ld. Pr. CIT in the submissions made in response to the notice issue by the ld. Pr. CIT u/s 263 of the Act but without he proceeded to set aside the order passed u/s 143(3) by exercising powers u/s 263 of the Act on the ground that the claim of the assessee for weighed deduction was accepted by the Assessing Officer without making enquiries or that since the claim of the assessee in respect of the three issues were accepted by the Assessing Officer on the basis of material available on record the ld. Pr. CIT was not justified in setting aside the order of the Assessing Officer pointing out that what enquiries or verification the Assessing Officer should have done and failed to do. She contended that elaborate submissions made on behalf of the assessee company in the ce issued by the ld. Pr. CIT u/s 263 of the Act clearly pointing out that there were no errors in the order of the Assessing Officer on merit as allegedly pointed out in the notice issued u/s 263. She contended that the ld. Pr. CIT, however, did ny fault in the submissions so made by the assessee company and proceeded arbitrarily to set aside the order of the Assessing Officer by holding the same as erroneous as well as prejudicial to the interest of the revenue. She contended that the der passed by the ld. Pr. CIT passed u/s 263 of the Act, therefore, is not sustainable in law as well as in the facts of the case and the same is liable to be The ld. D/R strongly supported the order passed by the ld. Pr. CIT u/s 263. He contended that no enquiry or verification was made by the Assessing Officer during the course of assessment proceedings on all three issues pointed out by the ld. Pr. CIT in his impugned order and since the claim of the assessee on these three issues was accepted by the Assessing Officer in the assessment order completed u/s 143(3) of the Act without making such enquiry or verification which was called for in the facts and stances. It was a case of lack of enquiry and the order passed by the Assessing Officer u/s 143(3) was rightly set aside by the ld. Pr. CIT vide his impugned order by treating the same erroneous and prejudicial to the interest of the We have heard the rival submission and also perused the relevant material available on record. In the present case the assessment order for the year under consideration was completed by the Assessing Officer u/s 143(3) of the Act vide order dt. 27/12/2018. On examination of the relevant assessment records the ld. Pr. CIT was of the view that the said assessment order passed by the Assessing Officer u/s 143(3) suffered from three errors and accordingly a notice u/s 263 of the Act was issued by him to the assessee pointing out the said errors and seeking explanation of the assessee as to why the order passed by the Assessing Officer u/s 143(3) should not be revised by exercising the powers conferred upon him u/s 263. The errors so pointed out by the ld. Pr. CIT in the notice u/s 263 already extracted by us in para 2 of this order and a perusal of the same shows that the order passed by the Assessing Officer u/s 143(3) was found to be erroneous by the ld. Pr. CIT on merit and then the reply filed to the no by him u/s 263, a written submission was made by the assessee to show that there were no such errors in the order of the Assessing Officer passed u/s 143(3) of the Act on merits. Although the ld. Pr. CIT reproduced the entire submissions made b in writing in his impugned order passed u/s 263 of the Act, he did not give any finding or observation thereon and without arriving at any conclusion to show that the order of the Assessing Officer was erroneous on merit, he simply set aside ground that the Assessing Officer failed to apply his mind to the facts of the case countenanced for the reasons discussed infra. Before reiterated the submissions made relevant facts and figures that there were no errors in the order of the Assessing Officer accepting the claim of the assessee on the relevant three issues o that even the ld. CIT D/R has not been able to rebut or controvert the same. He has simply contended by relying on the impugned order of the ld. Pr.CIT that no enquiry or verification was made by the Assessing Officer during the course proceedings on this issue and, therefore, it 11. In this context it would be gainful to refer to a Tribunal in the case of Sarda Mines Pvt. Ltd vs. DCIT Assessment Year: 2007-08, wherein it was “19. In the case of ITO vs learned counsel for the assessee, Hon’ble Delhi High Court has held that in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneou required, before order under section 263 is passed. It was held that the CIT cannot 9 consideration was completed by the Assessing Officer u/s 143(3) of the Act vide order /2018. On examination of the relevant assessment records the ld. Pr. CIT was of the view that the said assessment order passed by the Assessing Officer u/s 143(3) suffered from three errors and accordingly a notice u/s 263 of the Act was issued by him he assessee pointing out the said errors and seeking explanation of the assessee as to why the order passed by the Assessing Officer u/s 143(3) should not be revised by exercising the powers conferred upon him u/s 263. The errors so pointed out by the ld. Pr. CIT in the notice u/s 263 already extracted by us in para 2 of this order and a perusal of the same shows that the order passed by the Assessing Officer u/s 143(3) was found to be erroneous by the ld. Pr. CIT on merit and then the reply filed to the no by him u/s 263, a written submission was made by the assessee to show that there were no such errors in the order of the Assessing Officer passed u/s 143(3) of the Act on merits. Although the ld. Pr. CIT reproduced the entire submissions made b in writing in his impugned order passed u/s 263 of the Act, he did not give any finding or observation thereon and without arriving at any conclusion to show that the order of the Assessing Officer was erroneous on merit, he simply set aside ground that the Assessing Officer failed to consider the various aspects and did not apply his mind to the facts of the case, which action of the Ld. PCIT cannot be countenanced for the reasons discussed infra. Before us, the ld. Counsel f reiterated the submissions made before the Ld. PCIT to demonstrate on the basis relevant facts and figures that there were no errors in the order of the Assessing Officer accepting the claim of the assessee on the relevant three issues on merit and even the ld. CIT D/R has not been able to rebut or controvert the same. He has simply contended by relying on the impugned order of the ld. Pr.CIT that no enquiry or verification was made by the Assessing Officer during the course and, therefore, it was a case of lack of enquiry. In this context it would be gainful to refer to a Co-ordinate Bench Sarda Mines Pvt. Ltd vs. DCIT in I.T.A. No. 867/Kol wherein it was held as follows:- In the case of ITO vs D.G. Housing Project Ltd. 343 ITR 329 cited by the learned counsel for the assessee, Hon’ble Delhi High Court has held that in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous by conducting necessary enquiry, if required, before order under section 263 is passed. It was held that the CIT cannot ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. consideration was completed by the Assessing Officer u/s 143(3) of the Act vide order /2018. On examination of the relevant assessment records the ld. Pr. CIT was of the view that the said assessment order passed by the Assessing Officer u/s 143(3) suffered from three errors and accordingly a notice u/s 263 of the Act was issued by him he assessee pointing out the said errors and seeking explanation of the assessee as to why the order passed by the Assessing Officer u/s 143(3) should not be revised by exercising the powers conferred upon him u/s 263. The errors so pointed out by the ld. Pr. CIT in the notice u/s 263 already extracted by us in para 2 of this order and a perusal of the same shows that the order passed by the Assessing Officer u/s 143(3) was found to be erroneous by the ld. Pr. CIT on merit and then the reply filed to the notice issued by him u/s 263, a written submission was made by the assessee to show that there were no such errors in the order of the Assessing Officer passed u/s 143(3) of the Act on merits. Although the ld. Pr. CIT reproduced the entire submissions made by the assessee in writing in his impugned order passed u/s 263 of the Act, he did not give any finding or observation thereon and without arriving at any conclusion to show that the order of the Assessing Officer was erroneous on merit, he simply set aside the same on the consider the various aspects and did not which action of the Ld. PCIT cannot be us, the ld. Counsel for the assessee CIT to demonstrate on the basis of relevant facts and figures that there were no errors in the order of the Assessing Officer n merit and we find even the ld. CIT D/R has not been able to rebut or controvert the same. He has simply contended by relying on the impugned order of the ld. Pr.CIT that no enquiry or verification was made by the Assessing Officer during the course of assessment a case of lack of enquiry. Bench decision of the I.T.A. No. 867/Kol/2017 ; D.G. Housing Project Ltd. 343 ITR 329 cited by the learned counsel for the assessee, Hon’ble Delhi High Court has held that in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and s by conducting necessary enquiry, if required, before order under section 263 is passed. It was held that the CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. It was further held that in some cas establish that the facts on record or inferences drawn from the facts on record per se justified and mandated further enquiry or investigation, but the Assessing Officer had erroneously not undertaken the same. However, the sa unambiguous and not debatable and the matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries. It was held that in such matters, to remand the matter/issue to the Assessing Officer woul mean that the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide this aspect/question. In the case of Infinity Infotech Park Ltd. vs DCIT 58 ITR (Trib) 486 cited by the learne counsel for the assessee, there was no allegation in the show cause notice issued under section 263, like in the present case, that there was failure on the part of the Assessing Officer to make proper and adequate enquiries before completing the assessment and the allegation was that the Assessing Officer has formed a wrong opinion or finding on merits. In reply to the notice issued under section 263, the assessee filed a detailed reply on January 12, 2017. On the very same day, the commissioner passed on the ground of lack of enquiry. In these facts and circumstances involved in the case of Infinity Infotech Park Ltd. (supra), the Coordinate Bench of this Tribunal held that the Ld. CIT befor setting aside the order of the Assessing Officer ought to have given his own specific findings on the submissions made by the assessee and without doing so, the CIT could not exercise jurisdiction u that the Ld. CIT was not justified to invoke jurisdiction under section 263 of the Act on the ground of lack of enquiry by the Assessing Officer without putting the assessee on notice. Reliance in support Tribunal on the decision of Hon’ble Delhi High Court in the case of ITO vs D.G. Housing Project Ltd. (supra) and the order passed by the CIT under section 263 was quashed. 12. In the present case the material facts are Park Ltd. (supra) in as much as the notice u/s 263 pointing out the errors in the order of the Assessing Officer was issued by the ld. Pr. CIT on 08/03/2021 and the detailed reply to the said notice was filed by the there were no errors in the order of the Assessing Officer passed u/s 143(3) on merits as alleged in the notice issued u Pr. CIT passed the impugned order u/s 263 without giving any finding or conclusion as to how the order of the Assessing Officer was erroneous and prejudicial to the interest of the revenue in the notice u/s 263 and set aside the same on the ground of lack of enquiry by the Assessing Officer able to show from the relevant records that the three (3) issues on which the Ld. PCIT found fault with the AO’s order does not exist. On wrong assumption of fact 10 remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. It was further held that in some cases, the CIT can also show and establish that the facts on record or inferences drawn from the facts on record per se justified and mandated further enquiry or investigation, but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable and the matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries. It was held that in such matters, to remand the matter/issue to the Assessing Officer woul mean that the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide this aspect/question. In the case of Infinity Infotech Park Ltd. vs DCIT 58 ITR (Trib) 486 cited by the learne counsel for the assessee, there was no allegation in the show cause notice issued under section 263, like in the present case, that there was failure on the part of the Assessing Officer to make proper and adequate enquiries before completing the ent and the allegation was that the Assessing Officer has formed a wrong opinion or finding on merits. In reply to the notice issued under section 263, the assessee filed a detailed reply on January 12, 2017. On the very same day, the commissioner passed an order under section 263 setting aside the order of the A.O. on the ground of lack of enquiry. In these facts and circumstances involved in the case of Infinity Infotech Park Ltd. (supra), the Coordinate Bench of this Tribunal held that the Ld. CIT before exercising jurisdiction under section 263 of the Act by setting aside the order of the Assessing Officer ought to have given his own specific findings on the submissions made by the assessee and without doing so, the CIT could not exercise jurisdiction under section 263. It was also held by the Tribunal T was not justified to invoke jurisdiction under section 263 of the Act on the ground of lack of enquiry by the Assessing Officer without putting the assessee on notice. Reliance in support of this conclusion was placed by the Tribunal on the decision of Hon’ble Delhi High Court in the case of ITO vs D.G. Housing Project Ltd. (supra) and the order passed by the CIT under section 263 was In the present case the material facts are similar to the case of much as the notice u/s 263 pointing out the errors in the order of the Assessing Officer was issued by the ld. Pr. CIT on 08/03/2021 and the detailed reply to the said notice was filed by the assessee in written on 19/03/2021 explaining that there were no errors in the order of the Assessing Officer passed u/s 143(3) on merits as alleged in the notice issued u/s 263 of the Act. Thereafter i.e., on 25/03/2021, the ld. d order u/s 263 without giving any finding or conclusion as to how the order of the Assessing Officer was erroneous and prejudicial to the interest of the revenue in the notice u/s 263 and set aside the same on the ground of lack of g Officer cannot be accepted. We find that the assessee has been able to show from the relevant records that the three (3) issues on which the Ld. PCIT found fault with the AO’s order does not exist. On wrong assumption of fact ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. remand the matter to the Assessing Officer to decide whether the findings recorded es, the CIT can also show and establish that the facts on record or inferences drawn from the facts on record per se justified and mandated further enquiry or investigation, but the Assessing Officer id finding must be clear, unambiguous and not debatable and the matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries. It was held that in such matters, to remand the matter/issue to the Assessing Officer would imply and mean that the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide this aspect/question. In the case of Infinity Infotech Park Ltd. vs DCIT 58 ITR (Trib) 486 cited by the learned counsel for the assessee, there was no allegation in the show cause notice issued under section 263, like in the present case, that there was failure on the part of the Assessing Officer to make proper and adequate enquiries before completing the ent and the allegation was that the Assessing Officer has formed a wrong opinion or finding on merits. In reply to the notice issued under section 263, the assessee filed a detailed reply on January 12, 2017. On the very same day, the an order under section 263 setting aside the order of the A.O. on the ground of lack of enquiry. In these facts and circumstances involved in the case of Infinity Infotech Park Ltd. (supra), the Coordinate Bench of this Tribunal e exercising jurisdiction under section 263 of the Act by setting aside the order of the Assessing Officer ought to have given his own specific findings on the submissions made by the assessee and without doing so, the CIT nder section 263. It was also held by the Tribunal T was not justified to invoke jurisdiction under section 263 of the Act on the ground of lack of enquiry by the Assessing Officer without putting the of this conclusion was placed by the Tribunal on the decision of Hon’ble Delhi High Court in the case of ITO vs D.G. Housing Project Ltd. (supra) and the order passed by the CIT under section 263 was similar to the case of Infinity Infotech much as the notice u/s 263 pointing out the errors in the order of the Assessing Officer was issued by the ld. Pr. CIT on 08/03/2021 and the detailed reply assessee in written on 19/03/2021 explaining that there were no errors in the order of the Assessing Officer passed u/s 143(3) on merits hereafter i.e., on 25/03/2021, the ld. d order u/s 263 without giving any finding or conclusion as to how the order of the Assessing Officer was erroneous and prejudicial to the interest of the revenue in the notice u/s 263 and set aside the same on the ground of lack of cannot be accepted. We find that the assessee has been able to show from the relevant records that the three (3) issues on which the Ld. PCIT found fault with the AO’s order does not exist. On wrong assumption of facts, the Ld. PCIT has assumed revisional jurisdiction which is evident from the fact that the assessee’s detailed submission on each of three (3) purported errors addressed in the impugned order nor the Ld. CITDR before us scenario, when we are convinced from perusal of the relevant papers that there errors on the part of AO on these three (3) issues, the impugned action of Ld. PCIT to again harp on the allegation of lack of enquiry cannot be countenanced. And for that we draw presumption of fact as envisaged in Section 114 of which provides that the Court may presume the existence of certain facts. According to this Section if a fact is likely to have happened: i) in common course of natural events ; ii) according to general human conduct; iii) according to public and private business; iv) due to the relation to the facts of the particular case existence of that fact i.e. in this ca the Indian Evidence Act, which helps us presume “ regularly performed”. So we presume in the facts and through the relevant pages of the PB from perusal of the papers filed was no error as wrongly assumed by Ld. PCIT. assuming revisional jurisdiction action of ours, we also rely on case of Infinity Infotech Park Ltd. vs DCIT case and therefore, we hold that the impugned order passed by the ld. Pr. CIT u/s 263 of the Act is without jurisdiction and so 13. In the result, appeal of the assessee is allowed. Order pronounce in the Court on Sd/- [Aby T. Varkey] Judicial Member Dated: 22.12.2021 {SC SPS} 11 evisional jurisdiction which is evident from the fact that the assessee’s detailed submission on each of three (3) purported errors in the impugned order nor the Ld. CITDR before us could do so e convinced from perusal of the relevant papers that there on the part of AO on these three (3) issues, the impugned action of Ld. PCIT to harp on the allegation of lack of enquiry cannot be countenanced. And for that we draw presumption of fact as envisaged in Section 114 of the Indian Evidence Act, 1872 Court may presume the existence of certain facts. According to his Section if a fact is likely to have happened: i) in common course of natural events ; ii) according to general human conduct; iii) according to public and private business; iv) due to the relation to the facts of the particular case. Accordingly, the Court can presume the e of that fact i.e. in this case we take the aid of illustration (e) to section 114 of the Indian Evidence Act, which helps us presume “judicial and official ”. So we presume in the facts and circumstances, through the relevant pages of the PB that AO has regularly performed his duties. Since s filed before the AO itself (PB) we are convinced that there wrongly assumed by Ld. PCIT. Therefore the Ld. PCIT erred in jurisdiction to interfere with the action of AO. For the aforesaid we also rely on the ratio of the decision of the Co-ordinate Bench in the Infinity Infotech Park Ltd. vs DCIT (supra), which is also applicable in the pre we hold that the impugned order passed by the ld. Pr. CIT u/s 263 of without jurisdiction and so liable to be quashed. In the result, appeal of the assessee is allowed. Order pronounce in the Court on the 22 nd day of December Judicial Member ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. evisional jurisdiction which is evident from the fact that the have neither been could do so. So in such a e convinced from perusal of the relevant papers that there were no on the part of AO on these three (3) issues, the impugned action of Ld. PCIT to harp on the allegation of lack of enquiry cannot be countenanced. And for that we the Indian Evidence Act, 1872 Court may presume the existence of certain facts. According to his Section if a fact is likely to have happened: i) in common course of natural events ; ii) according to general human conduct; iii) according to public and private business; iv) due Court can presume the se we take the aid of illustration (e) to section 114 of official acts have been circumstances, and after going that AO has regularly performed his duties. Since we are convinced that there refore the Ld. PCIT erred in to interfere with the action of AO. For the aforesaid ordinate Bench in the applicable in the present we hold that the impugned order passed by the ld. Pr. CIT u/s 263 of ember, 2021. Sd/- [P.M. Jagtap] Vice-President Copy of the order forwarded to: 1. JK Tyre & Industries Ltd 7, Council House Street Kolkata – 700 001 2. Principal Commissioner of Income Tax 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 12 Principal Commissioner of Income Tax -1, Kolkata Benches, Kolkata. Assistant Registrar/DDO ITAT, Kolkata Benches ITA No. 176/Kol/2021 Assessment Year: 2016-17 JK Tyre & Industries Ltd. True copy By order Assistant Registrar/DDO ITAT, Kolkata Benches