Abis Broiler Private Limited( A Private Limited Company), RAJNANDGAON V. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL-2, RAIPUR

ITA 92/RPR/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4764 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Assessee Lawyers: AMIT M JAIN
• Keywords: Bogus purchase; Set aside
• Section: 143(3); 153A; 13; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI N. K. CHOUDHRY, JUDICIAL MEMBER ./ I.T.A. NO.92/RPR/2019 ( / ASSESSMENT YEAR : 2012-13) ABIS BROILER PRIVATE LIMITED, C/O. IB GROUP CORPORATE HOUSE, VILLAGE INDAMARA, POST PENDRI, DISTRICT RAJNANDGAON, CHHATTISGARH / VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL-2, RAIPUR ./ ./ PAN/GIR NO. : AAHCA 6940 P ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI AMIT M. JAIN, CA / RESPONDENT BY : SHRI R.K. SINGH, CIT - DR / DATE OF HEARING 29.07.2021 / DATE OF PRONOUNCEMENT 29 .09.2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE REVISIONAL ORDER OF THE PRINCI PAL COMMISSIONER OF INCOME TAX (CENTRAL) (PCIT IN SHORT), BHOPAL DATE D 08.03.2019 PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 196 1 (THE ACT IN SHORT) WHEREBY THE ASSESSMENT ORDER PASSED BY THE A SSESSING OFFICER (AO IN SHORT) DATED 19.12.2016 UNDER SECTION 153A /143(3) OF THE ACT CONCERNING ASSESSMENT YEAR (AY IN SHORT) 2012 -13 WAS SOUGHT TO BE SET ASIDE FOR REFRAMING THE ASSESSMENT IN TER MS OF SUPERVISORY JURISDICTION. 2. AS PER ITS GROUNDS OF APPEAL, THE ASSESSEE HAS C HALLENGED THE REVISIONAL ACTION OF THE PCIT WHEREBY THE ASSESSING OFFICER WAS ITA NO.92/RPR/2019 ABIS BROILER PVT LTD VS. ACIT AY : 2012-13 - 2 - DIRECTED TO PASS THE ASSESSMENT ORDER DE NOVO AFTER MAKING INQUIRIES ON THE POINTS SET OUT IN THE NOTICE WHICH HAS ALREA DY EXAMINED AND CONSIDERED DURING THE ORIGINAL ASSESSMENT PROCEEDIN GS CONCERNING AY 2012-13. THE ASSESSEE HAS CHALLENGED THE ASSUMPTION OF JURISDICTION BY THE PCIT UNDER SECTION 263 OF THE ACT ON THE GRO UND THAT THE ASSESSMENT ORDER UNDER REVISION IS NEITHER ERRONEOU S NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. THE RELEVANT FACTS, IN BRIEF, ARE THAT THE RETUR N OF THE ASSESSEE WAS SUBJECTED TO SEARCH ASSESSMENT FOR THE AY 2012- 13 IN QUESTION AND THE ASSESSMENT WAS COMPLETED BY THE ASSESSING O FFICER BY PASSING THE ASSESSMENT ORDER UNDER SECTION 153A R.W .S. 143(3) OF THE ACT DATED 19.12.2016. 4. THEREAFTER, THE PCIT CALLED FOR THE ASSESSMENT R ECORDS AND OPINED THAT THE ASSESSMENT ORDER SO PASSED IS ERRON EOUS INSOFAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THE I SSUE OF NON- EXAMINATION OF ARRANGING BOGUS PURCHASE BILLS AMOUN TING TO RS.1,24,02,421/- FROM M/S. RAJDHANI TRADING COMPANY BY THE ASSESSEE. SIMILARLY, ANOTHER GROUP COMPANY M/S. IND IAN AGRO AND FOOD INDUSTRIES LIMITED IS ALSO STATED TO HAVE AVAI LED THE BOGUS PURCHASE BILLS FROM M/S. RAJDHANI TRADING COMPANY. THE PCIT ACCORDINGLY INVOKED REVISIONAL POWERS UNDER SECTION 263 OF THE ACT AND ISSUED SHOW-CAUSE NOTICE DATED 26.04.2017 TO TH IS EFFECT. 5. THE PCIT DID NOT FIND MERIT IN THE EXPLANATIONS OF THE ASSESSEE IN ITS DEFENSE AND ALLEGED THAT THE ASSESSING OFFIC ER DID NOT MAKE VERIFICATION AND INQUIRIES THAT SHOULD HAVE BEEN MA DE IN THE CONTEXT OF THE CASE. THE PCIT ACCORDINGLY SET ASIDE THE IM PUGNED ASSESSMENT ITA NO.92/RPR/2019 ABIS BROILER PVT LTD VS. ACIT AY : 2012-13 - 3 - ORDER PASSED UNDER SECTION 153A R.W.S. 143(3) OF TH E ACT DATED 19.12.2016 CONCERNING ASSESSMENT YEAR 2012-13 IN QU ESTION. THE ASSESSING OFFICER WAS DIRECTED TO REFRAME THE ASSES SMENT AFTER EXAMINING THE ISSUE WITH ADEQUATE INQUIRIES. AGGRI EVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. 6. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE ACT ION OF THE PCIT IS PLAINLY WITHOUT AUTHORITY OF LAW. THE ASSESSEE WAS EARLIER SUBJECTED TO ASSESSMENT WHICH STOOD COMPLETED EARLIER BEFORE THE SEARCH AND WAS THUS NOT ABATED IN TERMS OF SECOND PROVISO TO S ECTION 153A OF THE ACT. THE INQUIRIES IN THE CONCLUDED ASSESSMENT THUS COULD NOT GO WITHOUT REFERENCE TO INCRIMINATING MATERIAL FOUND I N THE COURSE OF SEARCH. IN RESPONSE TO THE SUBSTANTIVE ALLEGATION OF THE PCIT THAT THE TRANSACTIONS OF THE PURCHASE DONE WITH M/S. RAJDHAN I TRADING COMPANY WAS NOT PROPERTY VERIFIED BY THE ASSESSING OFFICER, THE LEARNED COUNSEL ADVERTED TO QUESTION NO.6 OF THE QU ESTIONNAIRE DATED 19.02.2016 ON THE ISSUE (PAGE NOS. 17 & 18 OF THE P APER-BOOK). IN RESPONSE TO THE SPECIFIC QUERY RAISED BY THE ASSESS ING OFFICER, THE ASSESSEE HAS FURNISHED A DETAILED SUBMISSION ON 30. 06.2016 TO DEFEND ITS FACTUAL POSITION (REPLY PLACED AT PAGE NOS.22 T O 25 OF THE PAPER- BOOK). IT WAS THUS CONTENDED THAT IT IS AFTER PERU SAL OF THE SUBMISSIONS AND EXAMINATION OF FACTS AND CIRCUMSTAN CES OF THE CASE, THE ASSESSING OFFICER FOUND MERIT IN THE PLEA OF TH E ASSESSEE AFTER PROPER APPLICATION OF MIND. IT IS THUS CONTENDED T HAT THE FACTUAL ISSUE WHICH HAS BEEN EXAMINED THREADBARE BY THE ASSESSING OFFICER IN SEARCH ASSESSMENT, THE REOPENING OF THE ASSESSMENT ON THE SAME ISSUE IN THE GARB OF REVIEW IS HIGHLY UNJUSTIFIED. IT WA S FURTHER SUBMITTED THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 153A OF THE ACT, AFTER ITA NO.92/RPR/2019 ABIS BROILER PVT LTD VS. ACIT AY : 2012-13 - 4 - RAISING SPECIFIC QUERY, WAS FURTHER APPROVED BY THE JCIT UNDER SECTION 153D OF THE ACT. IT WAS THUS HARPED THAT T WO DIFFERENT OFFICERS HAVE APPLIED THEIR MIND TO THE FACTUAL ASP ECT INVOLVING THE ISSUE AND TOOK A PLAUSIBLE VIEW. THE ALLEGATION OF BOGUS BILL IS BASED ON A VAGUE AND UNRELIABLE STATEMENT OF THIRD PARTY WHICH DOES NOT IMPEACH THE ASSESSEE. THE LEARNED COUNSEL RELIED UP ON SEVERAL JUDICIAL PRECEDENTS TO CONTEND THAT THE ASSESSMENT IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE WHER E THE ASSESSING OFFICER HAS TAKEN A PLAUSIBLE VIEW IN THE FACTUAL C ONTEXT AFTER DUE APPLICATION OF MIND. THE LEARNED COUNSEL FOR THE AS SESSEE ACCORDINGLY URGED FOR THE REVERSAL OF REVISIONAL ACTION. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ACTION OF THE REVISIONAL AUTHORITY AN D RELIED UPON THE REVISIONAL ORDER. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE REVISIONAL ORDER IN QUESTION AND ALSO OTHER MAT ERIALS REFERRED TO AND RELIED UPON BY THE RESPECTIVE SIDES AND CASE-LA WS CITED IN THIS REGARD. ON A BROADER RECKONING, THE FACTUAL POSITI ON THAT EMERGES OUT IS THAT THE ASSESSEE HAS PROCURED POULTRY FEED FROM M/S. RAJDHANI TRADING CO. THE REVENUE WAS IN POSSESSION OF CERTAI N INFORMATION PERTAINING TO M/S. RAJDHANI TRADING CO. AND ON THE BASIS OF THAT INFORMATION, THE ASSESSING OFFICER RAISED SPECIFIC QUERY AND CONFRONTED THE FACTUAL POSITION TO THE ASSESSEE. IN RESPONSE TO THE SPECIFIC QUERY, THE ASSESSEE SUBMITTED CERTAIN SUBM ISSIONS TO SUPPORT ITS CASE THAT THE TRANSACTIONS UNDERTAKEN WITH M/S. RAJDHANI TRADING CO. IS BONAFIDE AND ALSO SUBMITTED THE COPY OF CONF IRMATION AND TAX AUDIT REPORT OF THE SUPPLIER COMPANY. ALL THE BILL S AND VOUCHERS FOR ITA NO.92/RPR/2019 ABIS BROILER PVT LTD VS. ACIT AY : 2012-13 - 5 - SUCH TRANSACTIONS WERE PLACED BEFORE THE ASSESSING OFFICER FOR VERIFICATION. IT WAS ALSO POINTED OUT THAT THE PROP RIETOR OF THE SUPPLIER COMPANY HAS NOT IDENTIFIED THE ASSESSEE FOR THE PUR POSES OF ALLEGED BOGUS BILLS AND SUCH STATEMENT OF THE SUPPLIER COMP ANY IS VAGUE AND GENERIC IN NATURE. THE REQUEST FOR CROSS-EXAMINATI ON OF THE CONCERNED PERSON (SHRI JITENDRA KUMAR SAHU) GIVING STATEMENT ON BEHALF OF THE SUPPLIER COMPANY WAS NOT HONOURED. THE PROPRIETOR O F SUPPLIER NAMELY SHRI JITENDRA KUMAR SAHU VIDE AFFIDAVIT DATE D 10.04.2013 HAS ALSO RETRACTED HIS ORIGINAL STATEMENT, WHICH IN ANY CASE, WAS GENERAL WITHOUT IMPLICATING THE ASSESSEE IN PARTICULAR. IN THIS FACTUAL BACKDROP AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE AND VERIFICATION OF BOOKS OF ACCOUNTS AND DOCUMENTS PRODUCED BY THE ASSESSEE, THE ASSESSING OFFICER WAS CONVINCED WITH THE BONAFIDES OF THE PURCHASES MADE AND DID NOT EMBARK UPON ANY ADDITIONS IN THIS REGARD. 8.1 IT APPEARS THAT, ON THE SAME SET OF FACTS, THE PCIT HAS INVOKED JURISDICTION UNDER SECTION 263 OF THE ACT. ON PERUS AL OF THE SHOW- CAUSE NOTICE, IT IS APPARENT THAT THE PCIT HIMSELF HAS NOT ALLEGED A LACK OF INQUIRY IN THE MATTER; BUT HAS AVERED THAT ADEQUATE INQUIRES WERE NOT CARRIED OUT IN THE MATTER. WE DO NOT UNDE RSTAND THE PURPORT OF SUCH OBSERVATIONS. THE PCIT HAS NOT SPELT OUT AS TO WHAT INQUIRY WAS LACKING IN THE ACTION OF THE ASSESSING OFFICER. THE PCIT HIMSELF HAS NOT DONE ANY MINIMAL INQUIRY TO ASCERTAIN THE A LLEGED ERROR OF INADEQUACY IN INQUIRIES. IT APPEARS THAT THE PCIT H AS MERELY DIRECTED THE ASSESSING OFFICER TO MAKE FURTHER INQUIRIES TO FIND OUT WHETHER SOME ERROR HAS BEEN COMMITTED OR NOT. IN OUR VIEW, BEFORE GIVING SUCH GENERAL DIRECTIONS, IT WAS INCUMBENT UPON THE PCIT TO SHOW THAT THE VIEW TAKEN BY THE ASSESSING OFFICER IS WHOLLY UNSUS TAINABLE IN LAW. THE REVISIONAL POWERS CANNOT BE EXERCISED IN A PERF UNCTORY MANNER ITA NO.92/RPR/2019 ABIS BROILER PVT LTD VS. ACIT AY : 2012-13 - 6 - FOR DIRECTING SOME FURTHER AND FULLER INQUIRY MADE TO MERELY FIND OUT IF THE EARLIER VIEW TAKEN IS ERRONEOUS OR NOT. 8.2 IN THE INSTANT CASE, AN INQUIRY HAS BEEN CARRIE D OUT AND DEFENSE OF THE ASSESSEE WAS AFFIRMED BY THE ASSESSING OFFIC ER AS WELL AS THE JCIT. WE THUS SEE NO SCOPE FOR REVIEW FOR THE PURPO SES OF MAKING SOME UNSPELT INADEQUATE INQUIRY. THUS, THE INGRE DIENTS FOR ISSUING SHOW-CAUSE NOTICE UNDER SECTION 263 OF THE ACT ARE FOUND ABSENT. CONSEQUENTLY, THE REVISIONAL ORDER PASSED UNDER SEC TION 263 OF THE ACT IS BAD IN LAW AND IS LIABLE TO BE QUASHED AND S ET ASIDE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED ON 29.09.2021 AS PER RULE 34(4) OF THE I NCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/- SD/- (N. K. CHOUDHRY) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMB ER BT TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, RAIPUR 6. / GUARD FILE. BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR