Not specified V. Income Tax Appellate Tribunal, Guwahati

ITA/28/2011

AI Insights

The case involves an appeal by a civil contractor against the order of the Income Tax Appellate Tribunal, Guwahati, which upheld the Commissioner's decision to set aside the original assessment for the assessment year 2005-2006. The original assessment accepted the returned income with minor additions, but the Commissioner, under Section 263, found the assessment to be erroneous and prejudicial to the interest of the revenue, citing issues like a low profit rate and unverified depreciation claims. The Tribunal dismissed the assessee's appeal, leading to the current appeal before the High Court. The main legal questions revolved around the permissibility and scope of revisional powers under Section 263, especially after an assessment had been appealed and decided by the statutory appellate authority.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 801701 (HC-GUWAHATI)
• Appeal Type: Others
• Pronouncement Date: 22-10-2011
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Respondent
• Court: HIGH COURT
• Keywords: Erroneous Assessment; Fresh Assessment; Prejudicial to the interest of the Revenue; Revisional power; Low profit rate
• Section: 263; 260A

Judgement Text

"ITA 28/2011 BEFORE HON’BLE MR JUSTICE A K GOEL HON’BLE MR JUSTICE AMITAVA ROY Goel, J. This appeal has been preferred by the assessee against the order dated 2 2nd October, 2010 passed by the Income Tax Appellate Tribunal, Guwahati, under S ection 260A of the Income Tax Act, 1961 claiming following substantial questions of law: 1) Whether, under the given situation of the appellant, the revisional powe r conferred under Section 263 of I.T. Tax can be exercised or permissible under law? 2) Whether, when the assessment in question was if decided by the statutory Appellant authority finally, can the same assessment again be reopened by way o f exercising power vested under Section 263 of I.T. Act? 3) Whether, when the assessment in question was appealed and an respective order passed to that effect, can the assessment officer, by ignoring the finding s of the appellant authority and also against the mandate of Appellant authority can reassessed? 4) Whether, the impugned action of the respondent No.4 based on percentage on estimation is permissible in case of present appellant? The assessee is a civil contractor deriving income from construction business. F or the assessment year 2005-2006, the assessing officer made assessment acceptin g the returned income with minor additions. However, the Commissioner, exercisin g jurisdiction under Section 263, issued notice to the assessee alleging that th e assessment was erroneous and prejudicial to the interest of the revenue on var ious grounds, including declaration of low profit rate which called for further investigation and depreciation claimed having been wrongly accepted in respect o f the assets which did belong to the firm. After due consideration, the Commissioner set aside the order of assessment and directed fresh assessment to be made. Accordingly, fresh assessment has been mad e making additions to the returned income, against which an appeal is said to be pending before the CIT(A). The assesee also preferred an appeal to the Income Tax Appellate Tribunal agains t the order passed under Section 263 on the ground that the said order was not a speaking order and there was no occasion to pass such order. The Tribunal dismi ssed the appeal holding that there was justification for the order passed. The r elevant observations are: We have heard the parties and perused the material placed before us. We find no merit in the submission of the learned counsel for the assessee that the notice issued by the ld. C.I.T. u/s 263 of the Act was not speaking one, as is evident from the contents of the notice mentioned in his order and reproduced in this o rder above. We find that the assessee’s gross receipts during the year under app eal in civil construction business was shown at Rs.4,34,24,478/- and adding ther ewith the receipts from hire charges, the total turnout came to Rs.5,89,21,792/- . The G.P. was shown at 11.21% and N.P. at 0.53%. However, taking into account i nterest and partners’ salary, N.P. worked out to 2.80%. The A.O. while passing a ssessment order has only disallowed a sum of Rs.38,519/- on account of travellin g expenses, which he found unverifiable. In the assessment order there is no dis cussion with regard to other claims of the assessee to arrive at the result of i ts business. On the other hand, we find that the ld. C.I.T. after taking into co nsideration the submission of the assessee has been very reasonable in entertain ing the claim on various issues raised in the notice u/s 263 and did not interfe re with the same. He has set aside the assessment order on certain other issues with direction to A.O. to collect relevant details/evidence from the assessee an d to readjudicate the same as per law after proper examination/verification. In view of the above, it cannot be said that the order of ld. C.I.T. was not a spea king one. Further, from the assessment order it is not evident that the A.O. mad e detailed enquiry in regard to various issues pointed out in the notice u/s 263 of the Act which, in our considered opinion, is necessary to determine the corr ect profit of the assessee in the line of civil construction business, more so w hen the total turnover this year stood at about Rs.5.89 crores. As pointed out b y the ld. C.I.T. in his order, majority of the expenses were not supported by bi lls & vouchers and payments were made in cash. We have heard Mr S Chamaria, learned counsel for the assessee. Learned counsel for the assessee submits that the assessee had preferred appeal against the additions made by the assessing officer in such situation, proceedin gs under Section 263 was not permissible. We are unable to accept the submissions. Scope of appeal of the assessee against addition was not the same as the scope of jurisdiction under Section 26 3. Neither any principle nor any precedent has been cited to substantiate the su bmission that during the pendency of the appeal of the assessee, jurisdiction un der Section 263 could not be exercised. It was also submitted that interference under Section 263 was not permissible on the ground of low profit. This submission can also not be accepted. As pointed out by the Commissioner and upheld by the Tribunal, there was material to draw an inference that the profit declared by the assessee was not acceptable without further investigation. Unle ss explained, profit declared was abnormal. It was certainly open to the Commiss ioner to take such a view in the facts of the case. If it was found that the ass essing officer failed to apply his mind while making assessment, the jurisdictio n under Section 263 could have certainly been exercised. Thus, from the submissi ons made on behalf of the appellant, no substantial question of law arises. The appeal is dismissed. "