M/s. Mahavir Civil Engineering & Services Pvt. Ltd., Jalgaon V. Principal Commissioner of Income-tax (Central),

ITA 942/PUN/2016

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3753 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revision of order; Search and seizure; Assessment record
• Section: 263; 139; 143(3); 133A; 153A; 80IA; 292BB; 80IC; 139(1); 80IC; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.942/PUN/2016 िनधाᭅरण वषᭅ / Assessment Year: 2012-13 M/s. Mahavir Civil Engineering & Services Pvt. Ltd., 131, Khandesh Mill Compound, Railway Station Road, Jalgaon- 425001. PAN : AAFCM5940D Vs. PCIT (Central), Nagpur. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of ld. Pr. Commissioner of Income Tax (Central), Nagpur (‘PCIT’) dated 04.03.2016 passed u/s 263 of the Income Tax Act, 1961 (‘the Act’) for the assessment year 2012-13. 2. The appellant raised the following grounds of appeal :- “1. In the facts of the case and in Law, the learned CIT erred in invoking Section 263 to the case of the Appellant only by way of change of opinion, without pointing out any error in the order of the A.O. and Assessee by : Shri Bhupendra Shah Revenue by : Shri J. P. Chadraker Date of hearing : 21.03.2022 Date of pronouncement : 26.04.2022 ITA No.942/PUN/2016 2 also by disregarding detailed submissions made to him from time to time and without valid order u/s 127. 2) In the facts of the case and in Law, the Show Cause Notice & or order u/s 263 alleging errors and prejudice, itself is erroneous on many counts as follows. a) In the facts of the case and in Law, the learned CIT has erred in invoking the provision of sec. 263 merely because he wants to take a view different from the one taken by the Assessing Officer and thereby changing the opinion of the Assessing Officer by his/her opinion. b) In the facts of the case and in Law, the learned CIT has erred in holding that the Assessing Officer failed to look into the provisions of the Act and also failed to enquire in respect of deduction Rs.34,94,505/- claimed by the Appellant u/s. 80IA(4) of even though all the details were furnished to the Assessing Officer. c) In the facts of the case and in Law, the learned CIT has erred in disregarding the fact that similar deduction was already allowed in several scrutiny assessments in earlier years as well. d) In the facts of the case and in Law, the learned CIT has erred in disregarding the fact that the deduction granted in initial year cannot be withdrawn in subsequent years on the same fact. e) In the facts of the case and in Law, the learned CIT has erred in overlooking various judgments pronounced by the different Courts. ✓ GENERAL This appeal is filed in time. The appellant reserves the rights to add alter or delete any portion of this appeal before its conclusion.” 3. Briefly, the facts of the case are as under : The appellant is a company engaged in the business of execution of civil contracts. The return of income for the assessment year 2012-13 was filed on 25.07.2013 disclosing total income of Rs.1,47,94,703/- after claiming of deduction u/s 80IA(4) ITA No.942/PUN/2016 3 amounting to Rs.34,94,505/-. The search and seizure operations were conducted in the case of Kotecha Group of cases on 09.08.2011 by the DDIT (Inv.), Jalgaon. During the course of search and seizure operations in the case of Shri Dileep V. Kotecha, cash of Rs.42,66,850/- was found which was explained to be out of cash withdrawals made from bank account of the company, namely, M/s. Mahavir Civil Engineering & Services Pvt. Ltd. (the appellant herein). A survey operation u/s 133A was conducted in the business premises of the appellant company and certain incriminating documents were stated to have been impounded. During the course of assessment proceedings, the assessee took an objection against transfer of jurisdiction by an order passed u/s 127 dated 02.12.2011 passed by the Commissioner of Income Tax-II, Nashik from Jalgaon to Nashik. The said objection was overruled by the Assessing Officer placing reliance on the provisions of section 292BB of the Act. Against the return of income, the assessment was completed by the Assessing Officer vide order dated 30.03.2014 accepting the returned income. Subsequently, the PCIT, on review of the assessment record, formed an opinion that the claim for deduction ITA No.942/PUN/2016 4 of Rs.34,94,505/- u/s 80IA(4) is not allowable as the appellant had not filed the return of income on or before due date specified under the provisions of section 139 of the Act. Accordingly, he opined the assessment order is erroneous and prejudicial to the interests of the Revenue. Therefore, he issued a show-cause notice u/s 263 on 01.02.2016 requesting the appellant to show-cause as to why the order of revision should not be passed setting aside the assessment. In response to the said show-cause notice, the appellant submitted that the assessment order has become final and in the absence of any incriminating material unearthed as a result of search and seizure operations, the claim cannot be disallowed. It is further contended that the claim came to be allowed by the Assessing Officer after detailed examination by him at the time of assessment proceedings. Thus, it was prayed by the appellant that the power of revision cannot be exercised, as the claim came to be allowed after due examination by the Assessing Officer placing reliance on the decision of Hon’ble Bombay High Court in the case of Gaberial India Ltd., 203 ITR 128 (Bom.). The ld. PCIT after considering the explanation filed by the assessee held that the explanation is not tenable in law for the ITA No.942/PUN/2016 5 reason that the assessment under consideration is not made regular assessment u/s 143(3), but the claim for deduction u/s 80IA(4) is patently not allowable on the plain provisions of section 80IA(4) of the Act. Therefore, the assessment order passed is not in accordance with the law and renders the assessment erroneous and prejudicial to the interests of the Revenue placing reliance on the decision of the Hon’ble Calcutta High Court in the case of Dawjee Dadabhoy and Company vs. S.P. Jain, 31 ITR 872 (Cal.) and the decision of the Hon’ble Gujarat High Court in the case of Addl.CIT vs. Mukur Corporation, 111 ITR 312 (Guj.) The ld. PCIT also placed reliance on the several decisions. Accordingly, in exercise of power vested under the provisions of section 263 set-aside the assessment order by directing the Assessing Officer to pass a fresh assessment order in accordance with law after giving opportunity of being heard to the assessee. 4. Being aggrieved by the above order of revision passed u/s 263, the appellant is in appeal before us. 5. The ld. Counsel for the assessee submitted that the very order passed by the ld. PCIT is invalid in law for the reasons that the Assessing Officer who passed the assessment order had no ITA No.942/PUN/2016 6 jurisdiction to pass such assessment order for the reason that the order u/s 127 was passed without giving opportunity to the assessee. On merits, he submitted that the issue of allowability of deduction claimed u/s 80IA(4) of Rs.34,94,505/- was examined and allowed by the Assessing Officer and the ld. PCIT cannot exercise power of revision merely because the ld. PCIT took a view different from one taken by the Assessing Officer. 6. On the other hand, ld. CIT-DR submits that the issue of jurisdiction cannot be raised at this juncture as the assessment order had become final and if the assessee is aggrieved by the order passed u/s 127, he ought to have exercised the remedy available at the time of passing the order u/s 127 of the Act. In the earlier years also, the claim was disallowed. When the claim was allowed by the Assessing Officer contrary to the plain provisions of the Act, assessment order becomes erroneous and prejudicial to the interests of the Revenue. Reliance was placed on the decision of the Hon’ble Madhya Pradesh High Court in the case of Bhilai Wires Ltd. vs. CIT, 93 Taxman 462 (MP). 7. We heard the rival submissions and perused the material on record. As regards, the other contention of the appellant that the ITA No.942/PUN/2016 7 Assessing Officer had no jurisdiction to pass the assessment order, as no opportunity was offered by the Commissioner of Income Tax- II, Nashik while passing the order u/s 127 of the Act, we are of the considered opinion that this issue cannot be agitated in the revision proceedings, as revision proceedings are only prejudicial to an assessee and the issues concluded in the assessment proceedings cannot be re-agitated by an assessee in the revision proceedings. Further, the proceedings u/s 127 are independent of the assessment proceedings, in the event, an assessee is aggrieved by an order u/s 127, necessary remedy lies elsewhere as held by the Hon’ble Punjab & Haryana High Court in the case of Jaswinder Kaur Koover vs. CIT, 295 ITR 80. 8. It is trite law that an assessee is barred from raising contention that no opportunity was given to the assessee while transferring the jurisdiction of the case u/s 127 from Jalgaon to Nashik as the order of the transfer of case u/s 127 was within the knowledge of the assessee during the course of assessment proceedings and still the assessee had not chosen to participate in the matter of jurisdiction of the Assessing Officer to whom the case has been transferred. The assessee cannot be allowed latter to challenge the jurisdiction of the ITA No.942/PUN/2016 8 Assessing Officer as held by the Hon’ble Supreme Court in the case of Pannalal Binjraj vs. Union of India, 31 ITR 565 (SC) and the Hon’ble Gujarat High Court in the case of Shivabhai Khodabhai Patel vs. CIT, 244 ITR 457 (Guj.-HC). The Hon’ble Patna High Court in the case of Steel Engg. & Processing Works vs. Union of India, 243 ITR 721 (Pat.-HC) after referring to the judgement of the Hon’ble Supreme Court in the case of Pannalal Binjraj (supra) held to the same effect by holding as under :- “19. But this is not all. The facts as are emerging from the records of this case cannot be lost sight of, which have been elaborately pleaded and described by the respondent-revenue in its counter-affidavit and also in the reply affidavit to the rejoinder affidavit stating that the proceeding for transfer of the case from Patna to Ranchi was initiated at the instance of the petitioner-assessee himself and it was he, who suggested that the entire records and books of account are at Ranchi and so it will be convenient for him to co-operate with the assessment at Ranchi. Besides laches in approaching the Writ Court, the assessee- petitioner also submitted to the jurisdiction of the transferee authority at Ranchi. 20. This being so, the party once acquiesced to the jurisdiction of the transferee Court, all statutory rights which the assessee gets by virtue of section 127 vanish and, therefore, the assessee cannot assert that without affording opportunity as required under section 127, the case has been transferred. In this regard see Halsbury’s Laws of England, Vol. II, 3rd Ed., page 140, Pr. 265 and also the case in O.A.O.K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras AIR 1927 Mad. 130, which are referred to in the decision in the case of Pannalal Binjraj v. Union of India [1957] 31 ITR 565 (SC). 21. In the case of Pannalal Binjraj (supra), which is a Constitution Bench decision, the Supreme Court lays down the law to the effect that, "if an assessee has acquiesced in the jurisdiction of the Income-tax Officer to whom a case has been transferred, he cannot subsequently object to the jurisdiction of the officer and seek to get the order of ITA No.942/PUN/2016 9 transfer quashed by invoking the jurisdiction of the Court under article 226 of the Constitution". 22. This being the law in respect of cases where the assessee has acquiesced to the jurisdiction of the transferee Court, the submissions made by Shri Bajla have no application in this case. The writ petition is, therefore, dismissed.” 9. In the light of above legal position, the objection raised by the assessee challenging the transfer of jurisdiction of the case does not stand the test of the law. Thus, this contention is devoid of any merit and, accordingly, we dismiss the same. 10. The second ground challenges the power of revision exercised by the ld. PCIT to review the assessment order u/s 263 of the Act. Admittedly, in the present case, the appellant company filed the return of income for the assessment year 2012-13 on 25.07.2013 claiming deduction of Rs.34,94,505/- u/s 80IA(4) of the Act. The return of income was filed belatedly. The assessment was completed by the Assessing Officer u/s 143(3) on 30.03.2014 accepting the returned income. The provisions of section 80IA provides that any deduction under the provisions of sections 80IA, 80IB and 80IC of the Act cannot be allowed unless the return of income is filed on or before the due date specified under the provisions of section 139(1) of the Act. Thus, it is clear that the ITA No.942/PUN/2016 10 claim u/s 80IA(4) was allowed by the Assessing Officer in flagrant violation of the provisions of section 80(5) of the Act. Thus, assessment order was passed contrary to the plain provisions of the Act. It is trite law an assessment order passed in violation of plain provisions of Act is erroneous and prejudicial to the interests of the Revenue. Thus, the ld. PCIT was justified in exercising the power of revision u/s 263 of the Act. Thus, the assessee fails on this issue. 11. The arguments advanced on behalf of the appellant that the issue of allowability of deduction u/s 80IA(4) was examined by the Assessing Officer, during the course of assessment proceedings, cannot be accepted for the reasons that no material was placed on record in support of this argument. Even assuming for a moment, this issue was examined by the Assessing Officer when the Assessing Officer had took a view which is patently illegal view it renders the assessment order erroneous and prejudicial to the interests of the Revenue. As regards to the another argument on behalf of the appellant that in the absence of any incriminating material, the claim cannot be subject matter of revision, cannot be accepted for the reason that the subject assessment order was not passed as result of pursuant to ITA No.942/PUN/2016 11 notice u/s 153A or u/s 153C of the Act. Thus, the said contention raised on behalf of the appellant company by way of ground of appeal no.2 stands dismissed. 12. In the result, the appeal filed by the assessee stands dismissed. Order pronounced on this 26 th day of April, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 26 th April, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT (Central), Nagpur. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.