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Income Tax Appellate Tribunal, “ D ” BENCH, AHMEDABAD
Before: SHRI PRADIP KUMAR KEDIA & SHRI MAHAVIR PRASAD
आदेश / O R D E R
PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER The captioned appeal has been filed at the instance of the Assessee against the order of the Principal Commissioner of Income Tax-4, Ahmedabad [Pr.CIT in short] dated 08/03/2019 arising in the assessment order passed under s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 29/12/2016 relevant to Assessment Year (AY) 2014-15.
The grounds of appeal raised by the Assessee read as under:-
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -2- 1. On the facts and in the circumstances of the case, the order passed by the learned Pr.CIT u/s.263 of the IT Act is ab initio void being bad in law. 2. Without prejudice to the generality of Ground No.1, the order passed by the learned Pr.CIT u/s.263 of the IT Act, is bad in law for the reason that he directed the Assessing Officer on such issues which were not part of the show cause notices issued by him u/s.263 of the I.T.Act. 3. On the facts and in the circumstances of the case, the learned Pr.CIT erred in setting aside the assessment order dated 29th December, 2016 and directing the Assessing Officer to pass a fresh assessment order.
Brief facts of the case are that the assessee-company is engaged in the business of Multi-Specialty Hospital and its case was kept under revision by the Pr.CIT and notice was served to the assessee that order of the Assessing Officer was erroneous and prejudicial to the interests of the revenue for the following reasons:
(i) While computing the total income, the assessee-company made a disallowance of Rs.7,200 u/s.14A read with Rule 8D whereas according to the learned Principal CIT the disallowance works out to Rs.14,28,901. (ii) During the previous year relevant to the Assessment Year 2013-14 the assessee-company entered into a Composite Scheme of Arrangement in the nature of Demerger and Restructuring of Share Capital under sections 391 to 394 read with sections 100 to 103 of the Companies Act, between the assessee-company and Yogeshwar Healthcare Ltd. As per this Composite Scheme, Ghuma Division of Yogeshwar healthcare Ltd. (demerged company), along with all assets and liabilities shall be deemed to be transferred to and vested in the assessee-company with effect from the appointed date 1st April, 2012 at values appearing in the books of account of the demerged company. The learned Principal CIT observed that the assessee-company set off an amount of Rs.7.93 crores being brought forward loss/unabsorbed depreciation belonging to the transferred segment of the demerged company, against its income for the Assessment Year 2014-15. The learned principal CIT further observed that such set off of carry forward loss/unabsorbed
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -3- depreciation was not permissible as per the provisions of section 72A of the IT act. The learned Principal CIT has observed that such business loss/unabsorbed depreciation can be set off and carried forward only in the case of an Industrial Undertaking or a Hotel or a Ship. Further, the expression “industrial undertaking: is defined in clause (assessee) of sub-section (7) of section 72A of the IT Act. The learned Principal CIT was of the view that in the present case there was no industrial undertaking and, therefore, the unabsorbed loss of Yogeshwar Healthcare Ltd. cannot be set off/carried forward against the business income of the assessee- company. (iii) The learned Principal CIT in the aforesaid notices issued u/s.263 assumed that the Assessing Officer during the course of the assessment proceedings did not examine and apply his mind to the aforesaid issues and he failed to make any additions/disallowances on account of aforesaid factors. The learned Principal CIT, therefore, opined that the assessment order was erroneous and prejudicial to the interest of the revenue and called upon the assessee-company to explain as to why appropriate order be not passed u/s.263 of the IT Act.
At the time of hearing, ld.AR Shri Aseem Thakkar mentioned that in similar facts and circumstances in assessee’s own case in ITA No.1431/Ahd/2018 for AY 2013-14 dated 11/12/2020, matter has been decided by the Tribunal in favour of the assessee. The relevant abstract of the Tribunal order dated 11/12/2020 reads as under:
“2. The relevant facts are that the appellant-company is engaged in the business of Multispecialty Hospital. The original assessment order for the Assessment Year 2013- 14 was passed by the DCIT, Ahmedabad on 11.3,2016 u/s.!43(3) of the I.T. Act. In the opening para of the aforesaid scrutiny assessment order the Assessing Officer has mentioned that the case was selected for scrutiny and accordingly notice u/s.l43(2) of the I.T. Act was issued on 8th September, 2014 and thereafter a notice u/s, 142(1) of the I.T. Act was issued on 9th October, 2015 accompanied by a detailed questionnaire. At para-2 of the assessment order the Assessing Officer has mentioned that in response to the aforesaid notices the authorized representative of the appellant-company alongwith Shri Sunil Bhagat, Vice President (Accounts) of the appellant-company attended from time to time and submitted details as called for.
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -4- After this introductory remark the Assessing Officer proceeded to finalize the assessment. Ultimately, the Assessing Officer made an addition of Rs.13,95,600 by disallowing advertisement expenses. On various other issues which were specific, subject matter of the questionnaire issued by the Assessing Officer, no addition/disallowance was made. It is a regular procedure of an Assessing Officer that the assessment order contains discussion on only such issues which result into addition or disallowance. On all other issues which are duly examined by the Assessing Officer vis-avis the facts and submissions made before him during the course of the assessment proceedings, if the Assessing Officer is convinced that no addition is required, such issues are not discussed or referred to in the body of the assessment order.
The learned Principal CIT-4, Ahmedabad issued three notices u/s.263 of the I.T. Act which are dated 23.11.2017; 6.3.2018 and 22.3.2018. In these notices the appellant-company was informed that the impugned assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of the revenue for the following reasons:-
(i) While computing the total income, the appellant-company made a disallowance of Rs.6,53,822 u/s.!4A read with Rule 8D whereas according to the learned Principal C1T the disallowance works out to Rs.9,42,801. (ii) Further, the disallowance made u/s,14A while computing the income should have been added to the book profit u/s.ll5JB by virtue of Explanation-1(f) u/s.115JB. The Assessing Officer failed to add this amount to the book profit. (iii) During the previous year relevant to the Assessment Year 2013-14 the appellant-company entered into a Composite Scheme of Arrangement in the nature of Demerger and Restructuring of Share Capital under sections 391 to 394 read with sections 100 to 103 of the Companies Act, between the appellant-company and Yogeshwar Healthcare Ltd. As per this Composite Scheme, Ghuma Division of Yogeshwar Healthcare Ltd. (demerged company), alongwith all assets and liabilities shall be deemed to be transferred to and vested in the appellant-company with effect from the appointed date 1st April, 2012 at values appearing in the books of account of the demerged company. The learned Principal CIT observed that the appellant-company set off an amount of Rs.36.02 crores being brought forward loss/unabsorbed depreciation belonging to the transferred segment of the demerged company, against its income for the Assessment Year 2013-14. The learned Principal CIT further observed that such set off of carry forward loss/unabsorbed depreciation was not permissible as per the provisions of section 72A of the IT. Act. The learned Principal CIT has observed that such business loss/unabsorbed depreciation can be set off
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -5- and carried forward only in the case of an Industrial Undertaking or a Hotel or a Ship. Further, the expression "industrial undertaking" is defined in clause (aa) of sub-section [7) of section 72A of the I.T. Act The learned Principal CIT was of the view that in the present case there was no industrial undertaking and, therefore, the unabsorbed loss of Yogeshwar Healthcare Ltd. cannot be set off / carried forward against the business income of the appellant-company.
The learned Principal CIT in the aforesaid notices issued u/s.263 assumed that the Assessing Officer during the course of the assessment proceedings did not examine and apply his mind to the aforesaid issues and he failed to make any additions/disallowances on account of the aforesaid factors, The learned Principal CIT, therefore, opined that the assessment order was erroneous and prejudicial to the interest of the revenue and called upon the appellant-company to explain as to why appropriate order be not passed u/s.263 of the I.T. Act.
In response to the aforesaid notices issued by the learned Principal CIT, the appellant-company filed detailed replies dated 9* March, 2018 and 26th March, 2018. In these replies it was forcefully contended that all the relevant issues were thoroughly inquired into and examined by the Assessing Officer during the course of the assessment proceedings. The appellant-company filed detailed replies supported by relevant documents and other evidences and after considering the facts and circumstances and after full and proper application of mind the Assessing Officer accepted the disallowance suo motu made by the appellant-company U/S.14A read with Rule 8D and also that having regard to the facts and the provisions of section 72A of the I.T. Act, the appellant-company was entitled to set off / carry forward of the business loss/unabsorbed depreciation of demerged company as per the Composite Scheme approved by the Hon'ble Gujarat High Court. It was contended that the Assessing Officer after due application of mind has taken a plausible or possible view and in such a situation the learned Principal CIT has no jurisdiction to invoke section 263 of the I.T. Act. The aforesaid written replies filed by the appellant-company before the learned Principal CIT have been verbatim reproduced at pages 6 to 34 of the learned Principal CIT's order passed u/s.263. The learned Principal CIT rejected the written submissions made before him.
Now appellant company has come before us stating that Ld. Pr. CIT ought not to have initiated proceedings u/s 263 as Assessing Officer has already made enquiry with regard to disallowance of Rs. 6,53,882/-. Wherein it is submitted by the appellant company has already made disallowance of Rs. 6,53,882/- and same can be seen from statement of computation of income and Annexure-6 of Tax Audit Report. As we can see that Ld. A.O. has considered all aspects of aforesaid income and after thorough application of mind the A.O. has accepted the disallowance. Thus, we allow this ground of appeal.
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -6- 7. The Assessing Officer has also made detailed enquiry with regard to demerger of the company and same order was passed by the Hon’ble High Court and all the stake holders were informed by way of notice by the Hon’ble High Court and same is part of paper book at page no. 88 wherein it is mentioned that assets and liability as the debit balance of Profit and Loss account of the Demerged Company relating to the Demerged Undertaking being transferred to the Resulting Company shall be at values appearing on the day immediately preceding the demerger appointed date. For this purpose any change in value of assets, consequent to their re-valuation, if any, shall be ignored. The difference between the value of assets and value of liability as well as debit balance of Profit and Loss account attributable to the Demerged Undertaking transferred pursuant to the scheme shall be appropriated against the paid value of the share capital as envisaged under Clause 16.2 and it is further mentioned The Demerger shall comply with the provisions of section 2(19AA) of the Income Tax Act and accordingly, all the accumulated losses and allowance for unabsorbed depreciation of the demerged Company shall be allowed to be carried forward and set off in the hands of the Resulting Company as per the provisions of section 72A(4) of the Income Tax Act. It is submitted that the total accumulated loss of Rs. 79,85,483/- and allowance for unabsorbed depreciation of Rs. 43,95,97,098/- of Demerged Company pertaining to Demerged Undertaking shall be allowed to be carried forward and set off by the Resulting company.
On the other hand, revenue contention is that it is a case of amalgamation. As contemplated in Section 72A(4) of Income Tax Act and same as follows:
72A(4) Notwithstanding anything contained in any other provisions of this Act, in the case of a demerger, the accumulated loss and the allowance for unabsorbed depreciation of the demerged company shall- (a) Where such loss or unabsorbed depreciation is directly relatable to the undertakings transferred to the resulting company, be allowed to be carried forward and set off in the hands of the resulting company; (b) Where such loss or unabsorbed depreciation is not directly relatable to the undertakings transferred to the resulting company, be apportioned between the demerged company and the resulting company in the same proportion in which the assets of the undertakings have been retained by the demerged company and transferred to the resulting company, and be allowed to be carried forward and set off in the hands of the demerged company or the resulting company, as the case may be.
We draw support from a judgment of ITAT Mumbai 88 Taxmann.com 871 wherein it is held that “ where debit of referral charges during year in P & L A/c was and nothing but writing off of income which was previously received and offered to tax and Assessing Officer had examined this issue by making a query which was replied to by assessee, assessment order could not be said to be erroneous so as to be prejudicial to interest of revenue”.
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -7-
It is well settled principle of law where A.O. has exercised quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be found to be erroneous simply because Commissioner does not feel satisfied with the conclusion.
We also draw support from a judgment of Jurisdictional High Court in the matter of Kamal Galani 95 taxmann.com 261 (Guj.) wherein it is held as under:
Section 69A, read with section 263. of the Income-tax Act, 1961 - Unexplained money (Revision) - Block period 1-4-1996 to 25-7-2002 - Assessee was subjected to block assessment proceedings - During such proceedings, Assessing Officer found that there was introduction of amount in capital account of assessee - Further, assessee had received loan from his brother - With respect to introduction of capital, assessee had pointed out that he was an NRI for over two years and he had made foreign remittances over a period of time -As regards unsecured loan received from his brother, assessee pointed out that he was running a successful business of trading, was engaged in various commercial and noncommercial activities and he was man of standing and means - Assessing Officer accepted explanation of assessee and did not make any addition in respect of those amounts -Whether once Assessing Officer carried out detailed inquiries, it was not open for Commissioner to reopen issues on mere apprehension and surmises - Held, yes - Whether, therefore, Tribunal was justified in setting aside impugned revisional order - Held, yes [Para 20] [In favour of assessee] 12. In the case of CIT vs. Arvind Jewellers (2003) 259 ITR 502 Division Bench of Gujarat High Court referring to the judgment of Supreme Court in case of Malabar Industrial Co. Ltd. Vs. CIT [2000] 243 ITR 83 wherein it is held as under:
"6. From the above observations made by the Supreme Court, it is clear that the provisions of Section 263 cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer, it is only when an order is erroneous that the section will be attracted and incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. The Supreme Court has also made it clear that the phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer and that every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. It was further emphatically stated that when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with
ITA No.793/Ahd/2019 Shalby Limited vs. DCIT Asst.Year: 2014-15 -8- which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law." 13. After considering the arguments advanced by both the parties and going through the aforesaid judgment, we hold that Ld. Pr. CIT ought not to have initiated proceedings u/s 263 of the Income Tax Act when already enquiry is made by the Assessing Officer. Thus, in view of the above, we set aside the order of Ld. Pr. CIT.”
Since the Tribunal has already granted relief to the assessee in similar facts and circumstances in preceding year, therefore in parity with the aforesaid order, we set aside the order of the Ld.Pr.CIT u/s.263 of the Act.
In the result, appeal filed by the assessee is allowed. This Order pronounced in Open Court on 07 / 04/2021
Sd/- Sd/- ( PRADIP KUMAR KEDIA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 07/ 04 /2021 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)- �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad