Loading judgment…
No AI summary yet for this case.
Detected automatically from the text. The count shows how many other judgments on BharatTax rely on the same authority.
Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, JM & SHRI AMARJIT SINGH, AM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee trust against the order of the Ld. Commissioner of Income Tax (Exemptions) [hereinafter referred to as the “CIT(E)”], Mumbai dated 23.03.2022 for assessment year 2017-18 passed under section 263 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”).
The main grievance of the assessee is against invocation of revisional jurisdiction by Ld. CIT(E) without satisfying the essential condition precedent as required under Section 263 of the Act. 3. Brief facts is that the assessee trust and is a Charitable Organization Registered u/s 12A of the Act (vide registration no. TR/3007) and filed its return of income on 01.11.2017. The assessee claimed to be engaged in activities of education of the people of India by conducting and/or providing booklets, pamphlets, newspaper, magazines, or in any other manner. The AO noted that in the return of Saurashtra Trust income along with income and expenditure account, the assessee had filed the balance-sheet and audit report in Form 10B declaring total income at Rs.2,20,03,230/-. In the assessment order, the AO acknowledges that he had issued notices u/s 142(1) of the Act on 01.02.2019 & 20.08.2019 calling for relevant details and raised queries. And pursuant to which the assessee had filed answers to queries and furnished details as requisitioned by him. After examining the details filed by the assessee, the AO admits to have examined the books of account and he notes that the assessee is engaged in the publication which included publication of newspaper and magazine as well as carried out various commercial activities. According to AO, assessee even though has section 12A registration , it wont be able to enjoy the exemption u/s 11 of the Act because it’s case was hit by proviso to section 2(15) of the Act and thus it lost its charitable character within the meaning of section 2(15) and u/s 13(8) of the Act for the assessment year in question and the AO held “therefore reject this claim of the assessee and hold that the assessee trust is not eligible for any benefit and/or exemption u/s 11 and accordingly tax the entire income of the assessee trust denying the benefit of exemption u/s 11 of the Act.’ And thus he rejected the claim exemption u/s 11 of the Act. The AO at para 3.10 noted that the assessee has offered rental income; and interest on investment as business income. And therefore the AO at para 3.11 concluded that taxable income from house property profit and gain from business and income from other sources was calculated as under: - Particular Amount Income from business (2,08,85,298) Add: Prior period 42,918/- expenses Add: Provision for 70,00,000/- (1,38,42,380) taxation Income from House 3,49,24,677/- Property Income from other 2,98,18,246/- sources Addition U/s 11(3) 2,00,00,000/- Total Income 6,67,42,923/- Rounded off 6,67,42,920/-
And passed the assessment order dated 25.12.2019 u/s 143(3) of the Act.
Thereafter, the Ld. CIT(E), desired to exercise his revisional jurisdiction u/s 263 of the Act and noted that even though the AO has denied exemption u/s 11 of the Act and assesseed the total income at Rs.6,67,42,920, he found fault with the action of the AO accepting the service charges received by it as rental income. According to Ld. CIT(E), the assessee trust has claimed deduction of Rs.74,73,225/- under section 24(a) of the Act on “service charges” received by it to the tune of Rs.2,49,10,751/- during the year. And wondered as to how the “service charge” can be included in property income and standard deduction can be claimed and allowed by AO, which action of AO was erroneous and that the assessment order has been passed without basic verification about the allowability of claim under section 24(a) of the Act which is erroneous in so far as it was prejudicial to the interest of revenue. And so, he issued notice u/s 263 of the Act.
Saurashtra Trust 6. Pursuant to the show cause notice of Ld. CIT(E), the assessee trust replied that it’s commercial building has been given on leave & license basis under various agreements entered into with the respective parties. And the amenities include water and electricity supply, elevator, CCTV in common areas, and security services. And that the terms of the agreement for amenities are co-extensive with the terms of the leave & license agreement. Therefore, it was submitted that the income arising from the said agreement for amenities also forms part of income from house property within the meaning of Section 23 of the Act; and therefore the assessee trust is entitled to deduction u/s 24(a) of the Act on the amount of Rs.2,49,10,751/- which is received by the trust in pursuant to the agreement for amenities and credited in the books of accounts as services charges. And for supporting this averment, furnished copy of agreement for amenities for perusal of Ld. CIT(E) and also drew the attention of Ld. CIT(E) to the decision of this Tribunal in the case of Smt. Nirmala Zaverchand Shah vs DCIT (ITA No. 241/Mum/2019 dated 17.06.2020) wherein the Tribunal following its earlier decision in the said case in dated 05.11.2015 has held that the when service charges/amenities income are part of the basic agreement and form integral part to use of licence premises and their uses are coextensive/coterminous, then the same cannot be segregated. Thus, the Tribunal held that charges for amenities were rightly held to be income from house property relying on the decision of the Hon’ble Supreme Court in the case of M/s. Shambu Investments (2631TR 143) which affirmed the decision of the Hon’ble Calcutta High Court in the Saurashtra Trust case of M/s. Shambu Investments (249 ITR 47) wherein the Hon’ble Calcutta High Court while deciding the case of M/s. Shambu Investments (supra) applied the test as laid by the Hon’ble Constitution Bench (five Judges) of the Hon’ble Supreme Court in the case of Sultan Brothers Pvt Ltd. (51 ITR 353) where in it was held that where the prime object of the assessee under the agreement was to let out the using of the furniture and fixtures and other common facilities for which rent was being paid month by month in addition to the security free advance covering the entire cost of the said immovable property, then that income there-from is an income from house property and should be assessed as such. However, according to Ld. CIT(E), the AO has not carried out any such exercise (verification) before allowing the deduction u/s 24(a) of the Act Therefore, the Ld. CIT(E) has set aside the assessment order dated 25.12.2019 with direction to the AO to undertake enquiry and frame de-novo assessment order as under: - (i) Call for all the service agreements with regard to the payment of service charges and analyse the same in terms of their intrinsic nexus to the earning of rental income. (ii) All expenditure such as security charges and pantry etc. which are in the nature of expenditure stand alone services and not a part and parcel of prime object of earning project income, may be assessed under the head “Income from other sources”, deduction under section 24(a) of the Act to that extent may be denied. (iii) While considering income under other sources, necessary expenditure as allowable under the provisions of the Act may be allowed.”
Saurashtra Trust 7. Aggrieved by the aforesaid action of the Ld. CIT(E), the Ld. Sr. Counsel Y. P. Trivedi assisted by Shri Nishit Gandhi assailed the impugned action of Ld. CIT(E) to invoke the revisional jurisdiction. According to him, the show cause notice alleges that AO has not verified the allowability of claim of deduction u/s 24(a) of the Act, which is incorrect. According to Ld. Sr. Counsel, the AO had enquired about the same, and drew our attention to page no. 7 of the PB wherein notice u/s 142(1) of the Act dated 01.02.2019 is found placed, wherein the AO has asked assessee trust to file copy of “all quarterly TDS Returns filed in Form 14Q & Form 26Q for the financial year relevant to the assessment year under consideration”. And to reconcile all the expenses debited to P & L a/c vis-à-vis applicability of provisions of TDS, the TDS effected, Tax deposited in the Gov. Treasury along with supporting evidence, relevant challan and copy of TDS return as well as directed the assessee to give the following details and furnish documents: -
Details of payments made towards reimbursement of expenses in the following format” Name Amount Details of Reimbursement 21.Copy of the last 5 assessment order in your case and if any addition /disallowances were therein or any earlier order what is the present appellate result or has the same reached finality. 22. Ledger accounts of Income and Expenses under the various heads in soft copy in PDF format. File comparison of expenses for current & last year.
Saurashtra Trust 23. Trial Balance as on 31.03.2016 & 31.03.2017. Headwise, Partly-wise showing opening balance, Debit, Credit & Closing Balance.
Reconcile AIR information/ITS data.”
Thereafter, the Ld. AR drew our attention to page no. 17 wherein the details of income from license fees and service charges are given. Thereafter, the Ld. AR drew our attention to the notice u/s 142(1) of the Act dated 08.11.2019 which reads as under: - (i) Please provide copy of form 10B/10BB filed. (ii) Please provide party wise reconciliation of AIR.
Thereafter, he drew our attention to the reply filed by the assessee dated 11.10.2019 wherein the assessee has given the details of income from leave & license service charges which is found placed at page no. 20 of the PB. Thereafter, the Ld. AR drew our attention to the reply filed by the assessee to the AO dated 06.12.2019 wherein the assessee has filed the details regarding the TDS deduction of income from leave and license and the interest income. Thus according to the Ld. AR, the AO has enquired about the license fee and service charges which was claimed as income from house property because the amenities provided are necessary for use of the building. According to Ld. AR, the amenities charges/service charges are part and parcel of the leave & licence fees/rental income. And that the assessee has been offering the same consistently for many years and the same has been accepted. According to Ld. AR, when the amenities charges are co- extensive with that of the rental income, it need not be segregated and so assessee has offered the amenities charges/service charges along with leave and license fees which is emanating from house property.
Saurashtra Trust So according to him, it is income from house property within the meaning of Section 23 of the Act and therefore the assessee clamed standard deduction of 30% and the AO after examining the same has allowed the same. So according to Ld. AR, the AO has discharged the duty of investigator as well as that of adjudicator and took the view which is a plausible view in line with Tribunal order in the case of Smt. Nirmala Zaverchand Shah (supra) wherein the Tribunal relied upon the ratio of the decision of the Hon’ble Supreme Court in the case of M/s. Shambu Investments (supra). And since the treatment given by the assessee in respect of service/amenity charges has been accepted consistently in earlier years and there is no change its facts and law as per the settled position of law on the same, the Rule of consistency is attracted in this case and the AO after verifying that there was no change in facts or law on the issue has rightly not given a difficult treatment. Therefore, according to Ld. AR, the Ld. CIT(E) ought not to have interfered with the action of AO even though another view is possible unless the Ld. CIT(E) holds that the view taken by AO is unsustainable in law. So he pleaded that the impugned action of Ld. CIT(E) be quashed.
Per contra, the Ld. CIT-DR vehemently opposed the contention of Ld. AR and submitted that AO has not carried out the required verification and examined the character of the “service charges” and if he has done so, the assessee’s claim of deduction of 30% for service charges would not have been allowed. So he does not want us to interfere with the action of Ld. CIT(E).
Saurashtra Trust 11. We have heard both the parties and perused the records. Since the assessee has challenged the jurisdiction of the Ld. PCIT to pass the impugned order, let us first examine the scope of revisional jurisdiction u/s. 263 of the Act. For that, let us take the guidance of judicial precedence laid down by the Hon'ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions should be satisfied before jurisdiction u/s 263 of the Act is exercised by the ld. CIT. The twin conditions which need to be satisfied are that (i) the order of the Assessing Officer must be erroneous and (ii) as a consequence of passing an erroneous order, prejudice is caused to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous i.e. (i) if the Assessing Officer's order was passed on assumption of incorrect facts; or assumption of incorrect law; (ii) Assessing Officer's order is in violation of the principles of natural justice; (iii) if the AO's order is passed without application of mind; or (iv) if the AO has not investigated the issue before him. In the circumstances enumerated above the order passed by the Assessing Officer can be termed as erroneous for the purpose of section 263 of the Act. It has to be borne in mind that even if the Ld. PCIT/CIT finds that the assessment order is erroneous, he cannot invoke the revisional jurisdiction u/s 263 of the Act without satisfying the requirement of second limb [i.e. the Ld. PCIT/CIT has to show that due to the erroneous assessment order, prejudice has been caused to the interest of revenue]. This essential requirement of law needs to be satisfied before the Ld PCIT/CIT invokes revisional jurisdiction. This Saurashtra Trust proposition of law has been laid down by the Hon'ble Supreme Court in the case of Malabar Industries (supra) wherein their Lordship’s held that this phrase i.e. "prejudicial to the interest of the revenue'' has to be read in conjunction with an "erroneous" order passed by the Assessing Officer. Further the Hon’ble Supreme Court held ‘that for invoking powers conferred by section 263 of the Act, the CIT should not only show that the AO's order is erroneous as a result of any of the situations enumerated above but CIT must also further show that as a result of an erroneous order, some loss is caused to the interest of the revenue’. At this juncture, one has to understand what is prejudicial to the interest of revenue. Their Lordship explaining about this in the said judgment (Malabar supra) held that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. It was further held that when the Assessing Officer adopts one of the course permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the Ld. CIT does not agree, it cannot be treated as an order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law.
In the instant case, it has been brought to our notice that the AO during assessment proceedings has asked specific queries on the details of income from leave & license as well as service charge through notice u/s 142(1) of the Act and assessee’s reply dated 11.10.2019 the details are given which is found placed at page 20 and 17 of PB. The copies of notice issued by AO (five (5) notices) replies filed by the Saurashtra Trust assessee are given in the paper book. The details of service charges (amenity charges along with leave & license are available at pages 20 of the paper book. The assessee has specifically stated that the amount of Rs.5,01,87,872/-includes the amenity charges from fourteen (14) tenents. Further, vide letter dated 6th December, 2019, the assessee has again stated that the above said details have been furnished through the earlier letter dated 11.10.2019 and clarified that the AIR statement consists of TDS deducted on income from Advertisement, leave & licence charges and interest income. And it was pointed out that the total income offered under the head, interest, rent & advertisement as per income & expenditure account is Rs.24,46,58,306/- which is higher than the income of Rs.9,36,06,215/- reported in AIR statement. Accordingly, it can be seen that the AO has, in fact, made inquiries about the leave and license charges which assessee disclosed clearly that includes amenity charges thereof. So it cannot be said in the facts and circumstances of the case that it is a case of no enquiry but at best the Ld. CIT(E) can say it is lack of enquiry in the manner he thought the enquiry ought to have been conducted. But we are afraid that cannot confer jurisdiction to invoke revisional jurisdiction u/s 263 of the Act unless in such cases where AO had conducted enquiry not to the satisfactions of Ld. CIT(E), then Ld. CIT(E) himself should conduct enquiry on the issue and record a finding which would show that AO’s view despite enquiry was erroneous/unsustainable in law.
13. And we note that even before Ld CIT(E), the assessee has furnished the specific details of leave & licence (refer page 20 PB), which included the service/amenity charges. The case of the Ld Saurashtra Trust CIT(E) is that the AO has failed to examine the break-up of the details of the said expenditure in order to satisfy himself that the amount offered as rent does not includes security charges, pantry etc. However, the question is whether the Ld CIT(E) can hold such a view when the AO has enquired about the issue and that too without pointing out the error, if any, in the assessment order in the revision proceeding u/s 263 of the Act? According to us, the Ld. CIT(E) cannot do so, because AO has enquired about it and in such an event the Ld. CIT(E) himself has to enquire about the issue and point out that AO’s view was erroneous/un-sustainable in law.
14. In this context, it would be gainful to refer to case-law in the case of Gabriel India Ltd. (supra) wherein the Hon’ble Bombay High Court answered the question as to when an order can be termed as “erroneous” which was explained as under:-
From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an income tax officer acting in accordance with the law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income tax officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case Saurashtra Trust and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income tax officer. That would not vest the Commissioner with power to examine the accounts and determine the income himself at a higher figure. It is because the Income tax officer has exercised the quasi judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion…. There must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed
In the case of Nagesh Knitwears P Ltd (2012)(345 ITR 135), the Hon’ble Delhi High Court has elucidated and explained the scope of the provisions of sec. 263 of the Act and the same has been extracted by the Delhi High court in the case of CIT Vs. Goetze (India) Ltd (361 ITR 505) as under:-
Thus, in cases of wrong opinion or finding on merits, the Commissioner of Income tax has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and Saurashtra Trust necessary, before the order under section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order is not sustainable in law and the said finding must be recorded. The Commissioner of Income tax cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the Commissioner of Income tax must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the Commissioner of Income tax and he is able to establish and show the error or mistake made by the Assessing officer, making the order unstainable in law. In some cases possibly though rarely, the Commissioner of Income tax can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under section 263 of the Act. In such matters, to remand the matter/ssie to the Assessing Office and mean the Commissioner of Income tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question….
Saurashtra Trust Similar view has been expressed by Hon’ble Madras High Court in the case of CIT Vs. Amalgamations Ltd (238 ITR 963).
The law as laid down by the Hon’ble High Courts makes it clear that when the AO has conducted enquiry on an issue, then the Ld Pr. CIT/Ld. CIT(E) before holding an order to be erroneous, should conduct necessary enquiries or verification in order to show that the finding given by the AO on that issue is erroneous/unsustainable in law.
Now we have to examine whether the view taken by AO in the facts and circumstances of the case, is a plausible view. In this context, we note that the assessee has been consistently claiming the leave & licence fee along with amenity charges under the head “Income from house property” and was allowed standard deduction in earlier & subsequent assessment years. So assessee on the principle of consistency, justifies the action of AO to have followed his predecessor action since there is no charge in facts and law. And that is not the case of the Ld. CIT(E) that there is change in facts or law; and so, no fault can be said to have been committed by AO for following the earlier precedent and for that relies on the following case laws;- CIT Vs. Excel Industries 358 ITR 295 (SC); Radhasoami Satsang 193 ITR 321 (SC) & New Jehangir Vakil Mills 49 ITR 137 (SC). 18. Further, it was brought to our notice that the Service Agreement wherein the list of amenities have been listed out in para 1 on page 2 of the agreement (refer page 7 of PB) which inter-alia includes electricity water supply, lift etc. These are essential requirements/ necessities and Saurashtra Trust in-extricable part for usage of the property taken on rent by the tenant, and without which they cannot function in the leased out premises. And it can be seen that when the amenities given to the leased out premises/tenant have nexus to the enjoyment of the property, then it can be included in the income from house property as held by the Hon’ble Calcutta High Court, which has been upheld by the Hon’ble Supreme Court in Shambu Investments Vs. CIT (263 ITR 143 (SC) and Raj Dadarkar Associates Vs. ACIT CA 65 to 6460 of 2017 (SC) and by Tribunal in assessee’s own case for AY. 2008-09 at Para 11 to 15, wherein the Tribunal was considering whether the assessee was entitled to deduction us/ 24(a) of the Act or not on the composite rent income comprising of income from renting out of property and income from amenities, which was allowed by the Tribunal by relying on the decision in similar case of Sri Satya Sai Trust (ITA. No. 4965 & 6642/Mum/2011) and held on 11.07.2013 as under: - “12. The Ld. Counsel for the assessee submitted that the issue is covered in favour of the assessee by the decision of the Tribunal Mumbai Bench in the case of Sri Sathya Sai Trust in ITA No. 7350/Mum/2011.
The Ld. Departmental Representative could not bring any contrary decision.
We have considered the issue raised vide ground No.
1. After carefully perusing the order of the Tribunal in the case of Sri Sathya Sai Trust (supra) we find that the identical issue was before the Tribunal vide ground No. 2 of that appeal, the Tribunal at page-3, para-6 of its order held as under:
Saurashtra Trust “We have considered submissions of Ld. Representatives of parties and orders of authorities below. We observe that assessee is a charitable trust and carrying on the objects for the last 42 years. Assessee has computed income of rent received of Rs. 14,72,376/- and Rs. 60,000/- respectively, and as per the provisions of Chapter IV-C of the Income Tax, Act, i.e. under the income from house property claimed deduction u/s. 24 @ 30%. We observe that there is no provision of Income Tax Act that if the property of the assessee trust is held for charitable purposes, no deduction u/s. 24 would be available. Section 24 itself allows deduction of 30% of rental income. Hence, we are of the considered view that Ld. CIT(A) has rightly directed the AO to allow the claim of the assessee. Ld. DR has not pointed out any decision or made submissions contrary to the observation made by Ld. CIT(A). We, therefore, reject the grounds of appeal taken by department and uphold the order of Ld. CIT(A).”
15. Facts being identical, respectfully following the above decision of the Tribunal, ground No. 1 is dismissed.
19. Therefore, in view of the decision of this Tribunal in assessee’s own case on this issue, the view of the AO cannot be held to be un- sustainable in law. And it is not the case of Ld CIT(E) that the order of Tribunal (supra) has been reversed by the Hon’ble High Court. Therefore, we after going through the facts and circumstances of the case and following the principle of consistency also hold that the view Saurashtra Trust of the AO after enquiring on the issue cannot be held to be un- sustainable in law.
20. Since the AO view after enquiring is plausible view it could not have been interfered with unless the Ld CIT(E) has conducted during revisional proceedings enquiry or verified the facts in order to come to a conclusion that AO’s view was erroneous/un-sustainable in law. As noticed (supra) once AO has conducted enquiry (on an issue) then the Ld Pr. CIT before holding the order of AO to be erroneous, should have conducted necessary enquiries or verification in order to show that the finding given by the AO on that issue is erroneous/unsustainable in law. Coming back to the present case, once we have found that AO has discharged the duty of investigator (on the issue of deduction claimed u/s 24(a) of the Act which included amenities charges), then before Ld. CIT(E) holds the view of AO as erroneous, it was imperative on the part of Ld CIT(E) to have made necessary enquiries or verification and should have arrived at a conclusion that the view of AO was unsustainable in law. Admittedly, in the instant case, the Ld CIT(E) has not conducted any such enquiry or verification. In such a scenario, we have to hold that he has initiated revision jurisdiction on mere conjectures, suspicions and surmises, which is not permitted.
21. In such a scenario, his impugned action of holding the claim of assessee (deduction u/s 24(a) of the Act which includes amenity charges) as erroneous and prejudicial to the interests of revenue is untenable. Accordingly, we are of the view that the impugned revision order passed by Ld PCIT is not sustainable in law and assessee Saurashtra Trust succeeds on the legal issue raised before us. Accordingly, we quash the impugned revision order passed by Ld CIT(E).
In the result, the appeal of the assessee is allowed. Order pronounced in the open court on this 27/02/2023.