Jessop & Co. Ltd., Kolkata V. CIT, KOLKATA-1, Kolkata

ITA 702/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4772 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 21-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2014
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Procedural lapse; Assessment record; Unabsorbed depreciation
• Section: 143(3); 142(1); 115JB; 148; 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I.T.A NO. 702 & 1045/ KOL/2014 ASSESSMENT YEARS : 2008- 09 & 2009-10 M/S. JESSOP & CO.. LTD. -VS.- C.I.T., KOL KATA-1, KOLKATA KOLKATA [PAN : AAACJ 6969 N] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUBASH AGAR WAL, ADVOCATE FOR THE RESPONDENT : SHRI G.MALLIKARJUNA , CIT(DR) DATE OF HEARING : 21.07.2016. DATE OF PRONOUNCEMENT : 03.08.2016. ORDER PER N.V.VASUDEVAN, JM ITA NO.702/KOL/2014 IS AN APPEAL FILED BY THE ASSES SEE AGAINST THE ORDER DATED 28.03..2013 OF C.I.T., KOLKATA-I, KOLKATA PASSED U/ S 263 OF THE INCOME TAX ACT, 1961 (ACT). ITA NO.1045/KOL/2014 IS AN APPEAL FILED BY T HE ASSESSEE AGAINST THE ORDER DATED 25.03.2014 OF CIT-KOLKATA-I, KOLKATA PASSED U/S 263 OF THE ACT. SINCE THE COMMON ISSUES ARE INVOLVED IN BOTH THE APPEALS WE DEEM IT CONVENIENT TO PASS A COMMON ORDER. 2. ITA NO.702/KOL/2014 (A.Y.2008-09): GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS AP PEAL READ AS FOLLOWS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE ORDER U/S. 263 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX KOLKATA - I IS A RBITRARY, ERRONEOUS, CONTRARY TO THE PROVISIONS OF LAW AND ON FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME TAX -I KOLKATA WAS NOT JUSTIFIED IN ISSUING NOTICE U/S. 263 ON 22.03.2013. THAT THE ORDER U/S. 263 WAS PASSED WITHOUT ALLOWING REASONABLE OPP ORTUNITY OF BEING HEARD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX KOLKATA - 1 IS REQUIRED TO BE QUASHED. 2 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, ON THE WHOLE THE REVISION PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961 HAS BEEN INITIA TED TO FOR EXTRANEOUS REASONS. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE ORDER U/S 263 OF THE LEARNED COMMISSIONER OF INCOME TAX-1 KOLKATA IS REQUIRED TO BE QUASHED., 3. THE ASSESSEE IS A COMPANY. IT IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF ENGINEERING PRODUCTS. FOR A.Y.2008-09, THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.NIL. ORDER OF ASSESSMENT U/S 143 (3) OF THE ACT WAS PASSED BY THE AO IN WHICH THE TOTAL INCOME WAS ALSO DETERMINED AT RS .NIL. BEFORE CONCLUDING THE ASSESSMENT THE AO ISSUED A QUESTIONNAIRE TO THE ASS ESSEE DATED 11.08.2010. IN QUESTIONNAIRE NO.17 THE AO HAD RAISED ON SPECIFIC Q UERY WITH REGARD TO THE COMPUTATION OF DEDUCTION U/S 115JB (2) OF THE ACT. THE ASSESSEE GAVE SPECIFIC REPLY ON THE AFORESAID QUERY OF THE AO WHICH READS AS FOLLOWS :- IN RESPECT OF APPLICABILITY OF TAX U/S L15JB, WE H AVE TO STATE THAT ACCORDING TO LEGAL OPINION OBTAINED, WE ARE ELIGIBLE FOR DEDUCTION OF 'THE AMOUNT OF PROFITS' COMMENCING ON AND FROM THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE COMPANY BECAME SICK U/S 17(1) OF SICA, 19 85 AND ENDING WITH THE ASSESSMENT YEAR DURING WHICH THE 'NET WORTH' OF THE COMPANY TURNS POSITIVE. THUS, IN THE PRESENT CASE AMOUNT OF PROFITS FROM1995(WHEN THE COMPANY BECAME SICK U/S 17(1) OF SICA, 1985) TILL ASSESSMENT YEAR 2006-07 W ILL BE ELIGIBLE FOR DEDUCTION UNDER (VII) OF THE EXPLANATION IN COMPUTING THE 'BO OK PROFIT' FOR THE YEAR ENDED 31/03/2008 RELEVANT TO THE ASSESSMENT YEAR 2008-09 AS UNDER :- PBT AS PER P&IL FOR THE YEAR 1995 TO 2006 (-) 28 358.78 LACS 2007 2008 PBT AS PER P &L 1116.74 1876 .44 LESS: AMOUNT OF PROFITS OF SICK COMPANY TILL AY IN ( -) 28358.78 (-) 27242.04 WHICH IT'S NET WORTH TURNED POSITIVE BOOK PROFIT U/S LL5JB(2) ( -) 27242.04 ( -) 25365.60 4. THE AO DID NOT COMPUTE THE INCOME OF THE ASSESS EE U/S 115JB OF THE ACT IN THE ORDER OF ASSESSMENT DATED 390.12.2001 PASSED U/S 143(3) O F THE ACT AND THE COMPUTATION OF 3 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 3 TOTAL INCOME WAS DONE AS PER THE NORMAL PROVISIONS OF THE ACT. THERE IS NO DISCUSSION IN THE ORDER OF ASSESSMENT AS TO WHY BOOK PROFITS A RE NOT DETERMINED U/S.115JB OF THE ACT. 5. THE CIT IN EXERCISE OF HIS POWERS U/S 263 OF TH E ACT WAS OF THE VIEW THAT THE AFORESAID ORDER OF THE AO WAS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF THE REVENUE FOR THE FOLLOWING REASONS :- THE, ASSESSEE COMPUTED BOOK PROFIT U/S 115JB AT NI L AFTER CLAIMING A DEDUCTION OF RS. 31,33,16,069/- AS LOSS BROUGHT FORWARD OR UN ABSORBED DEPRECIATION WHICHEVER IS LESS FROM NET PROFIT. BEING 'BROUGHT F ORWARD DEPRECIATION BETWEEN A.Y. 1968-69 TO 1999-2000'. 2. AS PER CLAUSE (III) OF EXPLANATION TO SECTION 11 5JB, FOR ARRIVING AT THE BOOK PROFIT, THE NET PROFIT IS TO BE REDUCED BY THE AMOU NT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION, WHICHEVER IS LESS AS PER B OOKS OF ACCOUNT. FOR THE PURPOSE OF THIS CLAUSE,- A) THE LOSS SHALL NOT INCLUDE DEPRECIATION; B) THE PROVISIONS OF THIS CLAUSE SHALL NOT APPLY IF THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION IS NIL. FURTHER, AS PER JUDICIAL DECISIONS IN THE CASES OF CIT VS SHREE SYNTHETICS LTD. (233 ITR 333) (MP) AND AMLINE TEXTILES PVT. LTD. VS ITO (2009) 27 SOT 155 (MUM), IT IS THE CUMULATIVE LOSS/ DEPRECIATION AS APPEARIN G IN THE BALANCE SHEET WHICH SHOULD BE CONSIDERED FOR DEDUCTION FROM NET PROFIT AND NOT THE LOSS/DEPRECIATION CALCULATED ON A YEAR TO YEAR BASIS. IN VIEW OF THE ABOVE THE PROFIT & LOSS A/C WAS EXAMINED AND IT WAS OBSERVED THAT CUMULATIVE BROUGH T FORWARD PROFIT/(IOSS) TRANSFERRED FROM PROFIT & LOSS A/C AS ON 01.04.2008 STOOD AT A POSITIVE FIGURE OF RS. 344.47 LAKH. THUS, THERE WAS NO BROUGHT FORWARD LOSS/UNABSORBED DEPRECIATION AVAILABLE FOR SET OFF WHILE COMPUTING BOOK PROFIT U /S 115JB AS CLAIMED BY THE ASSESSEE. 3. EXAMINATION OF THE ASSESSMENT RECORD REVEALS THA T THE A.O. HAD RAISED THE QUESTION AS TO WHY TAX SHALL NOT BE CHARGED U/S 115 JB VIDE SERIAL NO 17 TO THE NOTICE DATED 11.08.2010 ISSUED U/S 142(1) OF THE AC T. IN ITS REPLY DATED 19.11.2010 THE ASSESSEE STATED THAT AS PER LEGAL OPINION OBTAI NED MAT WOULD NOT BE APPLICABLE TO IT SINCE THE COMPANY WAS ENTITLED TO DEDUCTION U NDER CLAUSE (VII) TO SECOND PROVISO OF SECTION 115J8. SECTION 115J8(2)(VII) CLE ARLY PROVIDES THAT IN CASE OF SICK .INDUSTRIAL COMPANIES, WHILE COMPUTING 'BOOK PROFIT ', NET PROFIT WILL BE REDUCED BY 4 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 4 THE ENTIRE PROFITS OF THE SAID SICK COMPANY SO LONG AS IT REMAINS SICK UNDER SUB- SECTION (1) OF THE SICK INDUSTRIAL COMPANIES (SPECI AL PROVISIONS) ACT AND TILL ITS NET WORTH BECOMES POSITIVE. THUS, IT IS BEYOND DOUB T THAT SECTION 115JB(2) IS APPLICABLE ONLY TO SICK INDUSTRIAL COMPANIES. HOWEV ER, IN THE INSTANT CASE IT IS OBSERVED FROM CLAUSE 11 TO THE 'NOTES ON ACCOUNTS' FOR THE YEAR ENDED 31.03.2008 THAT PURSUANT TO THE ORDER OF APPELLATE AUTHORITY F OR INDUSTRIAL AND FINANCIAL RECONSTRUCTION (AAIFR). THE COMPANY HAD BEEN DISCHA RGED FROM THE PURVIEW OF THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT SINCE THE NET WORTH OF THE COMPANY HAD BECOME POSITIVE. IT WAS ALSO SEEN FROM THE DETAILS SUBMITTED BY THE ASSESSEE THAT ITS NET WORTH HAD BECOME POSITIVE AT LEAST SINCE THE FINANCIAL YEAR 2006-07. IN VIEW OF THE SAME THE AFORESAID ORDERS O F THE HON'BLE BIFR BECOME FULLY OPERATIONAL. 4. IN VIEW OF THE ABOVE, DEDUCTION AS PER SECTION 1 15JB(2) WAS NOT APPLICABLE IN THE CASE OF THE ASSESSEE AND BOOK PROFIT U/S 115JB SHOULD HAVE BEEN COMPUTED AT RS. 18,76,44,4531- (AS SHOWN IN THE RETURN BEFORE D EDUCTION OF BROUGHT FORWARD LOSSES) AND TAX CHARGED ON IT THE AO. COMPLETELY FA ILED TO APPLY HIS MIND TO THE FACTS OF THE CASE AND THE LEGAL PROVISIONS OF SECTI ON 115JB THUS COMMITTING THE ERROR OF UNDERASSESSMENT OF INCOME U/S 115JB BY RS. 18,76,44,453/- INVOLVING UNDERCHARGE OF TAX OF RS. 2,82,75,955/-I, THEREFORE , CONSIDER THE ASSESSMENT ORDER TO BE ERRONEOUS AND HE INTEREST OF REVENUE AND LIAB LE TO REVIEW U/S 263 OF THE INCOME TAX ACT, 1961. 6. THE AFORESAID SHOW-CAUSE NOTICE DATED 20.03.201 3 WAS ISSUED TO THE ASSESSEE FIXING THE HEARING OF THE APPEAL ON 25.03.2013. ACCORDING TO THE AO IN RESPONSE TO THE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE CIT FURTHER OBSERVED THAT THE PROCEEDINGS U/S 263 OF THE ACT WERE GETTING BARRED BY LIMITATION ON 31.03.2013 AND THE CIT(A) ACCORDINGLY PROCEEDED TO PASS ORDER U/S 263 OF THE ACT. AFTER DISCUSSING THE POWERS OF THE CIT U/S 263 OF THE ACT IN PARAGRAPH-7 TO 13 OF THE IMPUGNED ORDER THE CIT FINALLY CONCLUDED AS FOLLOWS :- CONSIDERING THE ABOVE FACTS AND JUDICIAL PRONOUNCE MENTS, IT IS CONCLUDED THAT THE AO HAD FAILED TO APPLY HIS MIND TO THE FACTS AND RE LEVANT LAW AND THEREFORE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE. THEREFORE, THE SAME IS SET ASIDE WITH THE DIRECTION TO THE AO TO ASSESSEE THE INCOME DE NOVO INCLUDING THE ISSUE OF COMPUTATION OF BOOK PROFIT O F THE ASSESSEE AFTER VERIFICATION OF THE FACTS AND BY APPLICATION OF THE PROVISIONS O F INCOME TAX ACT, 1961. 5 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 5 7. AGGRIEVED BY THE AFORESAID ORDER OF CIT THE ASS ESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 8. THE FIRST AND FOREMOST OBJECTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE WAS THAT ORDER U/S 263 OF THE ACT HAS TO BE QUASHED FOR THE REASONS THAT THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD BEFORE PASS ING THE IMPUGNED ORDER. IT IS NOT IN DISPUTE THAT U/S 263(1) OF THE ACT, THE CIT HAS TO GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING ORDER U/S 263 OF THE ACT. I N THE RELEVANT A.Y. THE ASSESSEE HAD FILED RETURN OF INCOME ON 29.09.2008 IN WHICH THE A DDRESS OF THE ASSESSEE IS GIVEN AT 21 AND 22, JESSORE ROAD, DUM DUM, KOLKTA. IN THE IMPUG NED ORDER U/S 263 OF THE ACT THE ADDRESS OF THE ASSESSEE IS SHOWN AS 63, N.S.ROAD, K OLKATA-700001. THE LD. COUNCEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT AS EARLY AS 21.02.2005, IT HAD INTIMATED THE AO ABOUT THE CHANGE OF ADDRESS. HE ALSO BROUGHT TO OUR NOTICE THAT SHOW-CAUSE NOTICE U/S 263 WAS SENT BY SPEED POST TO THE OLD ADDRESS DESPI TE THE REVENUE KNOWING THE CHANGE OF ADDRESS. THE SAID NOTICE WAS RETURNED UN-SERVED BY THE POSTAL AUTHORITIES AND THEREAFTER IT WAS SERVED BY FIXTURES AT THE OLD ADD RESS BY THE INSPECTOR OF INCOME TAX. THESE FACTS ARE ADMITTED BY THE AO IN THE LETTER DA TED 19.02.2014 ADDRESSED TO THE ASSESSEE. POINTING OUT TO THE ABOVE FACTUAL DETAILS WITH REGARD TO THE SERVICE OF SHOW- CAUSE NOTICE, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT ONCE THERE IS NO VALID SERVICE OF NOTICE ON THE ASSESSEE THE NATURAL CONCL USION THAT ONE HAS TO DRAW IS THAT THE ASSESSEE WAS NOT AFFORDED PROPER OPPORTUNITY OF BEI NG HEARD BY THE REVENUE. HE PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS RAMENDRA NATH GHOSH 82 ITR 888 (SC) WHEREIN THE HONBLE SUPREME COURT TOOK A VIEW THAT IN THE ABSENCE OF A VALID SERVICE OF SHOW CAUSE NOTICE U/S.263 OF THE ACT, ORDER PASSED U/S 263 OF THE ACT IS LIABLE TO BE QUASHED AS ILLEGAL. 9. WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO FINDING IN THE IMPUGNED ORDER OF THE CIT THAT THE ORDER OF AO 6 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 6 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF TH E REVENUE. IN THE ABSENCE OF SUCH FINDING ORDER U/S 263 OF THE ACT SHOULD HELD TO BE INVALID. IN THIS REGARD ATTENTION WAS DRAWN TO THE DECISION OF THE HONHBLE RAJASTHAN HIG H COURT IN THE CASE OF CIT VS JAI MEWAR WINE CONTRACTORS 251 ITR 785 (RAJ). 10. WITHOUT PREJUDICE TO THE AFORESAID SUBMISSIONS IT WAS FURTHER SUBMITTED THAT THE CIT HAS EXERCISED JURISDICTION U/S 263 OF THE ACT ON TH E REASONING THAT THE AO DID NOT MAKE ADEQUATE ENQUIRIES ON THE COMPUTATION OF BOOK PROFI TS U/S 115JB OF THE ACT. HE FURTHER BROUGHT TO OUR NOTICE THAT A QUERY WAS RAISED BY TH E AO AND REPLY WAS ALSO GIVEN TO THE SAID QUERY BY THE ASSESSEE. IT WAS HIS SUBMISSION T HAT IN THE LIGHT OF THE ENQUIRIES MADE BY THE AO, JURISDICTION U/S 263 OF THE ACT COULD NO T HAVE BEEN EXERCISED BY THE CIT ON THE GROUND OF LACK OF ENQUIRY. REFERENCE WAS MADE T O THE FOLLOWING TWO DECISIONS OF THE HONBLE DELHI HIGH COURT : DIT VS JYOTI FOUNDATION 357 ITR 388 (DELHI) CIT VS SUNBEAM AUTO LTD. 332 ITR 167 (DELHI). 11. THE LD. DR SUBMITTED THAT EVEN ASSUMING THAT T HERE WAS NO PROPER OPPORTUNITY AFFORDED TO THE ASSESSEE BEFORE PASSING THE IMPUGNE D ORDER U/S 263 OF THE ACT. IT CAN AT BEST BE SAID THAT THERE WAS IRREGULARITY WHICH WILL NOT VITIATE THE ORDER U/S 263 OF THE ACT. THE PROPER COURSE WOULD BE SET ASIDE THE ORDER OF CIT AND REMAND FOR FRESH CONSIDERATION BY THE CIT AFTER AFFORDING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE ON THE ISSUES RAISED IN THE SHOW CAUSE NOTICE U/S 263 OF THE ACT AND RENDER A DECISION. HE POINTED OUT THAT ATTEMPTS WERE MADE BY THE CIT TO S ERVE NOTICE ON THE ASSESSEE AND THIS WAS EVIDENT FROM THE RECORD AND IT WAS NOT THE INTE NTION OF THE CIT NOT TO AFFORD OPPORTUNITY TO THE ASSESSEE. HE PLACED RELIANCE ON THE JUDICIAL PRONOUNCEMENT IN CIT VS ELECTRO HOUSE 82 ITR 824 (SC). HE RELIED ON THE DEC ISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF RENUSAGAR POWER CO.LTD. VS. CIT 234 ITR 782 (ALL). IN THE AFORESAID CASE, THE ASSESSEE CHALLENGED AN ORDER PASSED UNDER S. 263 OF THE ACT AS A NULLITY, 7 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 7 INASMUCH AS THAT WAS MADE BY THE CIT WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE FORMER. THE TRIBUNAL WAS OF THE VIEW THAT IT WA S NOT NECESSARY FOR THE CIT TO GIVE AN OPPORTUNITY OF BEING HEARD TO ASSUME JURISDICTIO N BUT OPPORTUNITY OF HEARING WAS MERELY A PART OF PROCEDURE TO BE FOLLOWED AFTER THE JURISDICTION UNDER S. 263 HAVING BEEN ASSUMED. THE TRIBUNAL WAS OF THE VIEW THAT NO OPPOR TUNITY OF HEARING WAS GIVEN TO THE ASSESSEE BEFORE THE IMPUGNED ORDER WAS PASSED UNDER S. 263 BY THE CIT. THE TRIBUNAL, THEREFORE, HELD THAT SUCH OMISSION CAUSED A PROCEDU RAL IRREGULARITY, WHICH WAS RECTIFIABLE. THE TRIBUNAL, THEREFORE, SET ASIDE THE ORDER OF THE CIT PASSED UNDER S. 263 AND REMITTED THE CASE BACK TO THE CIT TO MAKE AN OR DER DE NOVO AFTER GIVING AN OPPORTUNITY OF BEING HEARD. THE ORDER OF THE TRIBU NAL WAS UPHELD BY THE HONBLE ALLAHABAD HIGH COURT WHICH HELD THAT THE OMISSION T O AFFORD OPPORTUNITY OF BEING HEARD WAS A PROCEDURAL IRREGULARITY, WHICH WAS RECTIFIABL E. HE ALSO SUBMITTED THAT THE JURISDICTION OF SECTION 292B OF THE ACT WILL COME T O THE RESCUE OF THE DEPARTMENT. WITH REGARD TO THE ENQUIRIES MADE BY THE AO THE LD. DR S UBMITTED THAT ENQUIRY MADE BY THE AO WAS INSUFFICIENT AND IN THE LIGHT OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF MAITHAN ENTERPRISES 375 ITR 123 (CAL), IT CANNOT BE SAID THE ENQUIRY MADE BY THE AO WAS ADEQUATE OR THAT IT WAS CARRIED TO THE LOGICAL END. ITA NO.1045/KOL/2014 (A.Y.2009-10) : 12. AS FAR AS THE APPEAL FOR A.Y.2009-10 IS CONCER NED IN THIS ASSESSMENT YEAR THERE WAS PROPER SERVICE OF NOTICE U/S 263 OF THE ACT. THE RE PLY OF THE ASSESSEE TO THE SHOW CAUSE NOTICE U/S.263 OF THE ACT, (WHICH IS IDENTICAL AS W AS ISSUED IN A.Y.2008-09) WAS AS FOLLOWS :- A) WE WOULD LIKE TO STATE THAT THE PROCEEDINGS U/S .263 HAVE BEEN INITIATED BASED ON MISCONCEPTION OF INCOMPLETE FACTS. ALL THE STATE MENTS MADE IN YOUR NOTICE WERE ALSO AVAILABLE TO THE LD.A. O. THE LD. A. O. HAD CO NSIDERED ALL THESE MATERIALS IN FRAMING THE ORDER U/S.143(3). 8 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 8 B) WE GIVE BELOW THE YEAR-WISE DETAILS OF EARLIER W RITE BACKS IN THE ACCOUNTS AND HEREBY EXPLAIN HOW THE NET WORTH OF THE COMPANY HAS BECOME POSITIVE. C) FOR THE YEAR ENDED 2004, THE COMPANY HAD ACCUMUL ATED LOSS OF RS.44, 887. 95 LACS AND LOSS INCURRED DURING THE YEAR WAS RS.638. 19 LACS. THE COMPANY HAD WRITTEN BACK RS.33,238.96 LACS ON ACCOUNT OF GRANT RECEIVED, LOAN WRITE BACK, WAIVER OF INTEREST IN TERMS OF SANCTIONED BIFR PACK AGE. CONSEQUENTLY, THE LOSS CARRIED FORWARD FOR THE YEAR ENDED 2004 WAS RS. 12, 287. 18 LACS. D) FURTHER FOR THE YEAR ENDED 31ST MARCH,2005, THE LOSS BROUGHT FORWARD FROM THE EARLIER YEAR IS RS.12,287.18 LACS AND THE PROFIT EA RNED DURING THE YEAR WAS RS.482.31 LACS AND THE PROFIT EARNED DURING THE YEA R WAS RS.482.31 LA CS. THE CARRIED FORWARD LOSS WAS RS. 11,804.87 LACS. E) FOR THE YEAR ENDED 2006 THE COMPANY HAD RS.11,80 4.87 LACS AS BROUGHT FORWARD LOSS AND THE AMOUNT WRITTEN BACK AGGREGATED TO RS.1 1,014.72 LACS AS PER DETAILS FURNISHED BELOW: PARTICULARS AMOUNT EQ. SHARE CAPITAL REDUCTION 8516.81 SALE OF LAND 819.22 LIABILITIES WRITTEN BACK 1051.64 SALES TAX WRITTEN BACK 265.04 INTEREST ON WB LOAN WRITTEN BACK--- 212.07 PROVISION FOR LEAVE ENCASHMENT WRITTEN BACK. 149.94 11,014.72 F) AFTER WRITE BACK OF THE ABOVE AMOUNTS, THE ULTIM ATE LOSS CARRIED FORWARD IN THE BALANCE SHEET WAS RS. 790. 15 LACS. G) CONSEQUENTLY THE NET-WORTH HAD BECOME POSITIVE D UE TO UNUSUAL AND EXCEPTIONAL WRITE BACKS DURING THE YEAR 2004, 2005 AND 2006 AND NOT DUE TO THE PROFIT EARNED BY THE SICK INDUSTRIAL COMPANY IE. JESSOP & CO. LTD . H) AS SUCH OUR COMPANY IS ENTITLED TO DEDUCTION UND ER CLAUSE (VII) BELOW EXPLANATION -1 OF SECTION 115JB(2), THE PROFITS OF SICK INDUSTRIAL COMPANY TO THE EXTENT OF THESE WRITE BACKS. I) AS SUCH THE BOOK PROFIT U/S. 115JB IS NIL AND RA THER THE BOOK PROFIT IS MINUS 90169096. 9 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 9 J) BASED ON THE ABOVE FACTS, THE PROCEEDINGS U/S.26 3 IS NOT WARRANTED AND IN VIEW OF SUCH NEGATIVE BOOK PROFITS THERE IS NOTHING PREJUDI CIAL TO THE INTEREST OF REVENUE, THE PRIMARY CONDITION FOR INITIATION OF THE PROCEED INGS U/S.263. 13. THE CIT AFTER REFERRING TO SEVERAL JUDICIAL PR ONOUNCEMENTS ON THE SCOPE OF POWER U/S 263 OF THE ACT FINALLY CONCLUDED AS FOLLOWS :- 13. SINCE THE ASSESSING OFFICER HAS FAILED TO PROP ERLY SCRUTINIZE AND ENQUIRE INTO THE ABOVE ASPECTS, THE ASSESSMENT COMPLETED IN THIS CASE SET ASIDE WITH THE DIRECTION TO THE ASSESSING OFFICER THAT THE FACTS A ND FIGURES ON THE ISSUES MENTIONED ABOVE SHOULD BE EXAMINED PROPERLY DE-NOVO AND A COR RECT CONCLUSION BE ARRIVED AS PER LAW. THE ASSESSMENT IS, THEREFORE, SET ASIDE ON THE ISSUES DISCUSSED ABOVE. IT IS EVIDENT FROM THE AFORESAID ORDER OF THE CIT T HAT THE JURISDICTION U/S 263 OF THE ACT WAS INVOKED BY HIM FOR THE FAILURE OF THE AO TO MAK E PROPER AND ADEQUATE ENQUIRIES BEFORE CONCLUDING THE ASSESSMENT U/S 143(3) OF THE ACT. 14. AS FAR AS THE ASSESSMENT CONCLUDED FOR A.Y.200 9-10 BY THE AO IS CONCERNED THE FACTS ARE THAT THE ASSESSEE FILED THE RETURN OF INC OME ON 30.09.2009 DECLARING THE TOTAL INCOME OF RS.3,40,130/-. ORDER OF ASSESSMENT DATED 28.12.2011 WAS PASSED BY AO U/S 143(3) OF THE ACT IN WHICH THE AO DETERMINED THE TO TAL INCOME OF THE ASSESSE AT RS.NIL. THE AO ADMITTEDLY DID NOT MAKE ANY ENQUIRIES WITH R EGARD TO THE COMPUTATION OF BOOK PROFITS BY THE ASSESSEE U/S 115JB OF THE ACT. 15. THE SUBMISSIONS MADE BY THE LD. COUNSEL OF ASS ESSEE ARE ALMOST IDENTICAL TO THE SUBMISSIONS AS WERE MADE IN THE APPEAL RELATING TO A.Y.2008-09. ON MERITS OF THE ISSUE RAISED BY THE CIT IN THE ORDER U/S.263 OF THE ACT, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE SUBMISSIONS MADE IN RESPONSE TO SHOW CAUSE NOTICE ISSUED U/S.263 OF THE ACT. THE LD. DR RELIED ON THE ORDER OF CIT. 16. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. AS FAR AS NON SERVICE OF SHOW-CAUSE NOTICE U/S.263 OF THE ACT IN AY 2008-09 IS CONCERNED, IT HAS TO BE FIRST BORNE IN MIND THAT THERE IS NO REQUIREMENT OF SERVICE OF NOTICE U/S. 263 OF THE ACT. SUB-SECTION (1) OF SECTION 263 OF THE ACT PROVIDES THAT : 10 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 10 `THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECO RD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BE ING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSA RY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, I NCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSM ENT AND DIRECTING A FRESH ASSESSMENT'. THE REQUIREMENT IN THIS PROVISION IS TO PASS THE OR DER `AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD.' IT IS UNLIKE THE LANGU AGE OF CERTAIN PROVISIONS OF THE ACT, INCLUDING SECTION 148 WHICH EXPRESSLY CONTAIN THE R EQUIREMENT OF ISSUE OF NOTICE, AS IS EVIDENT FROM SUB-SECTION (1) OF SECTION 148 WHICH P ROVIDES THAT : ` BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SEC TION 147, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME ......'. THUS IT IS EVIDENT THAT WHEREAS SECTION 148 SPECIFICALLY REQUIRES SERVING A NOTICE ON THE ASSESSEE, SECTION 263 SIMPLY TALKS OF GIVING AN OPPORTUNITY OF BEING HEARD. SECTION 263 OF THE ACT DISCUSSES THE SERVICE OF NOTICE GENERALLY AND NOT G IVING OPPORTUNITY OF HEARING. SUCH OPPORTUNITY OF HEARING CAN BE GIVEN EITHER BY MEANS OF SERVICE OF NOTICE IN TERMS OF SECTION 282 OR OTHERWISE. ALL THAT HE IS REQUIRE D TO DO IS TO GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND MAKE OR CAUSE TO MAK E SUCH INQUIRY AS HE DEEMS NECESSARY. THIS REQUIREMENT HAS NOTHING TO DO WITH THE JURISDICTION OF THE COMMISSIONER. IT SIMPLY PERTAINS TO THE REGION OF N ATURAL JUSTICE. BREACH OF THE PRINCIPLES OF NATURAL JUSTICE MAY PREJUDICE THE LEG ALITY OF THE ORDER MADE BUT CANNOT AFFECT THE JURISDICTION OF THE COMMISSIONER. SO LON G AS THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, THE JURISDICTION VESTS WITH THE CIT TO REVISE SUCH AN ORDER, OF COURSE, SUBJECT TO THE LIMITATION ENSHRINED IN THE PROVISION. THE ABOVE IS THE VIEW OF THE HON'BLE SUP REME COURT EXPRESSED IN THE CASE OF CIT VS. ELECTRO HOUSE 82 ITR 824 (SC). IN THE CASE OF ELECTRO HOUSE (SUPRA), THE HONBLE SUPREME COURT DID NOT DEAL WITH A CASE OF E FFECT OF THE ORDER PASSED U/S.263 OF 11 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 11 THE ACT, WHERE THERE IS NO VALID SERVICE OF SHOW-CA USE NOTICE U/S.263 OF THE ACT. IT WAS A DECISION RENDERED ON THE JURISDICTION OF THE CIT U/S.263 OF THE ACT. 17. IN THE PRESENT CASE WE ARE HOWEVER CONCERN ED WITH THE EFFECT OF THE ORDER U/S.263 OF THE ACT, WHERE THERE WAS AN IRREGULARITY IN THE MATTER OF AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, IN AS MUCH AS THE NOTI CE U/S.263 OF THE ACT WAS SENT TO OLD ADDRESS OF THE ASSESSEE AND WAS SERVED BY AFFIXTURE AT THE LAST KNOWN PLACE OF BUSINESS, WHICH HAD BEEN MADE AT THE OLD ADDRESS, DESPITE THE DEPARTMENT HAVING BEEN INFORMED ABOUT THE CHANGE OF ADDRESS PRIOR TO THE PROCEEDING S U/S.263 OF THE ACT COMMENCED. IN THE CASE OF RAMANENDRANATH GHOSH (SUPRA) THE HON BLE SUPREME COURT WAS ONLY CONCERNED WITH THE VALIDITY OF SERVICE OF NOTICE BY AFFIXUTURE AND NOT ON THE QUESTION AS TO WHAT IS THE EFFECT OF THE ORDER PASSED U/S.263 O F THE ACT WHEN NOTICE WAS NOT SERVED. THEREFORE THE EFFECT OF NON SERVICE OF SHOW CAUSE N OTICE U/S.263 OF THE ACT CAN AT BEST BE AN IRREGULARITY NOT AFFECTING THE JURISDICTION O F THE CIT U/S.263 OF THE ACT. THE PROPER COURSE IN SUCH CASES IS TO SET ASIDE THE ORD ER OF THE CIT PASSED U/S.263 OF THE ACT, IN SO FAR AS IT CONCERNS AY 2008-09 IS CONCERNED AN D DIRECT THE CIT TO PASS A FRESH ORDER AFTER AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD . WE HOLD AND DIRECT ACCORDINGLY. 18. AS FAR AS AY 2009-10 IS CONCERNED, THE QUES TION IN THAT AY IS AS TO WHETHER THE AO BEFORE CONCLUDING THE ASSESSMENT MADE THE NECESS ARY ENQUIRIES WITH REGARD TO COMPUTATION OF BOOK PROFITS U/S.115JB OF THE ACT, W HICH HE OUGHT TO HAVE MADE BEFORE CONCLUDING THE ASSESSMENT. THE ADMITTED FACTUAL PO SITION IS THAT THE AO DID NOT MAKE ANY ENQUIRIES WITH REGARD TO BOOK PROFITS U/S.115JB OF THE ACT BEFORE CONCLUDING THE ASSESSMENT FOR AY 2009-10. THE LAW IS WELL SETTLED THAT IF THE AO FAILS TO MAKE AN ENQUIRY ON AN ISSUE, WHICH IN THE GIVEN FACTS AND C IRCUMSTANCES OF THE CASE, CALLS FOR AN ENQUIRY THEN THE ORDER OF THE AO SHOULD HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE DECISION OF THE HONBL E DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES 99 ITR 375 (DELHI) CLEARLY SUPPORTS OF THE STAND OF THE REVENUE IN THIS REGARD. THE HONBLE DELHI HIGH COURT IN THE AFORESA ID DECISION HAS HELD THAT THE ITO BEING NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGA TOR, HE CANNOT REMAIN PASSIVE IN THE 12 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 12 FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT C ALLS FOR FURTHER ENQUIRY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE WORD `ERRONEOUS' IN S. 263 INCLUDES THE FAILURE TO MAKE SUCH AN ENQUIRY. WE ARE THEREFORE OF THE VIEW THAT EXERCISE OF JURISDICTION U/S 263 OF THE ACT WAS FULLY JUSTIFIED. THE DECISION OF THE HONB LE CALCUTTA HIGH COURT IN CIT VS. MAITHEN INTERNATIONAL 375 ITR 123 (CAL), DEALT WITH THIS ASPECT OF LACK OF ENQUIRY WITH EVEN MORE STRINGENT CONDITIONS. THE ASSESSEE IN TH AT CASE OBTAINED LOANS AGGREGATING TO RS.1.60 CRORE FROM SIX PRIVATE LIMITED COMPANIES RA NGING BETWEEN RS.7 LAC TO RS.1.10 CRORE. THESE COMPANIES HAVE FILED THEIR RETURNS WI TH NOMINAL INCOME. THE AO MENTIONED IN THE ASSESSMENT ORDER THAT THE INSPECTO R WAS DEPUTED TO VERIFY THE FRESH LOANS RECEIVED DURING THE YEARS, WHO VERIFIED SUCH LOANS AND GAVE A POSITIVE REPORT. KEEPING SUCH REPORT ON RECORD, THE AO ACCEPTED THE GENUINENESS OF THE TRANSACTIONS. THE CIT INVOKED THE POWERS U/S 263 IN WHICH IT WAS OBSERVED THAT THE REPORT GIVEN BY THE INSPECTOR WAS VERY ELEMENTARY AND SIMPLY MENTIO NED THAT HE HAD VERIFIED BANK PASSBOOKS, PROFIT & LOSS ACCOUNT AND BALANCE SHEETS OF THESE COMPANIES. IN NONE OF THE REPORTS HE HAD COMMENTED ON THE ISSUE OF CREDIT WOR THINESS OF THE PARTIES. THE CIT OPINED THAT THE AO WAS REQUIRED TO MAKE PROPER INVE STIGATION TO DETERMINE WHETHER THE LOAN WAS REALLY MADE BY THE THIRD PARTY OR IT HAD C OME OUT OF THE RESOURCES OF THE ASSESSEE HIMSELF. WHEN THE MATTER CAME UP BEFORE T HE TRIBUNAL, THE ORDER U/S 263 WAS SET ASIDE BY OBSERVING THAT THE AO DID CONDUCT ENQU IRY AND: IF THERE IS AN ENQUIRY, EVEN INADEQUATE, THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE LD. CIT TO PASS ORDER U/S 263 OF THE ACT. SETTING ASIDE THE ORDER PASSED BY THE TR IBUNAL, THE HONBLE JURISDICTIONAL HIGH COURT HAS LAID DOWN THAT : CIT HAD REASONS TO HOLD THAT CREDIT WORTHINESS OF THE ALLEGED LENDERS WAS NOT ENQUIRED INTO. IT FURTHER WENT ON TO HOLD THAT A MERE EXAMINATION OF THE BANK PASSBOOK, PROFIT & LOSS ACCOUNT AND BALANC E SHEET IS NOT ENOUGH. WHEN THE REQUISITE ENQUIRY WAS NOT MADE, THE HONBLE HIGH CO URT HELD THAT THE ORDER WAS TO BE CONSIDERED AS ERRONEOUS AND PREJUDICIAL TO THE INTE RESTS OF THE REVENUE. IT SET ASIDE THE VIEW OF THE TRIBUNAL ON INADEQUATE ENQUIRY BY HOLDI NG THAT: IF THE RELEVANT ENQUIRY WAS NOT MADE, IT MAY IN APPROPRIATE CASES AMOUNT TO NO ENQUIRY AND MAY ALSO BE A CASE OF 13 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 13 NON-APPLICATION OF MIND. IT FURTHER OBSERVED THAT THE QUESTION OF INADEQUATE ENQUIRY SHOULD BE UNDERSTOOD IN ITS PROPER PERSPECTIVE AND: IF IT CAN BE SHOWN THAT THE INADEQUATE ENQUIRY LED THE AO OR MAY HAVE LED INTO ASSUMPTION OF INCORRECT FACTS, THAT COULD MAKE THE ORDER ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. SETTING A BAD TREND IS ALSO PREJUDICIAL TO THE REVENUE. 19. IN VIEW OF THE ABOVE ENUNCIATION OF LAW BY NONE OTHER THAN THE HONBLE JURISDICTIONAL HIGH COURT, WE HAVE NO HESITATION IN HOLDING THAT THE CASE UNDER CONSIDERATION IS A GLARING EXAMPLE OF NOT MAKING A RELEVANT ENQUIRY WHICH AMOUNTS TO NO ENQUIRY AND IS A CASE OF NON-APPLICATION OF MIND BY THE AO. WE THEREFORE UPHOLD THE ORDER OF THE CIT U/S.263 OF THE ACT, IN SO FAR AS IT CONCERNS DIRECTION TO THE AO TO INVESTIGATE REGARDING COMPUTATION OF BOOK PROFITS U /S.115JB OF THE ACT, FOR AY 2009- 10. 20. IN THE RESULT, ITA NO. 702/KOL/14 IS ALLOWED FO R STATISTICAL PURPOSE, WHILE ITA NO.1045/KOL/14 IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 03.08.2016. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.08.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. JESSOP & CO.LTD., 21 & 22, JESSORE ROAD, DUM DUM , KOLKATA-700028. 2. C.I.T., KOL-1, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER A SSTT.REGISTRAR, ITAT, KOLKATA BENCHES 14 ITA NOS.702 & 1045/KOL/2014 JESSOP & CO.LTD. A.YRS.2008-09 & .2009-10 14