Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA ‘A” BENCH, KOLKATA
Before: SRI SANJAY GARG & DR. MANISH BORAD
order
: February 23rd, 2023 ORDER
Per Manish Borad, Accountant Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short “AY”) 2014-15 is directed against the order passed u/s 263 of the Income Tax Act, 1961 (in short the “Act”) by ld. Pr. Commissioner of Income-tax, Central-1, Kolkata [in short ld. “Pr. CIT”] dated 25.03.2019 arising out of the I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. assessment order framed u/s 153A/143(3) of the Act dated 26.12.2017.
The assessee is in appeal before the Tribunal raising the following grounds: “
1. That under the facts and in the circumstances of the case, the Ld. PCIT, Central-1, Kolkata erred in setting aside the order dt.26.12.2017 passed u/s.153A/ 143(3) holding the same to be erroneous so far as it was prejudicial to the interest of revenue in terms of Section 263 of the Income Tax Act, 1961. The order, so passed, is arbitrary & illegal and therefore need to be quashed.
2. That the assessee appellant craves leave to add, alter, amend or modify the grounds of appeal before or at the time of hearing.”
3. Brief facts of the case as culled out from the records are that the assessee is a limited company engaged in manufacturing of PVC pipes. Original return for AY 2014-15 filed on 27.11.2014 declaring total income of RS. 13,96,280/-. A search and seizure operation u/s 132 of the Act as well as survey operation u/s 133A of the Act was carried out on 06.10.2015 on CMI Group and various incriminating material were found and seized. The assessee company was served notice u/s 153A of the Act. In compliance thereto the assessee filed the return on 21.08.2016 declaring income at Rs. 17,51,160/-. Case selected for scrutiny followed by serving of notices u/s 143(2) of the Act. After considering the submissions made by the assessee with regard to questionnaire issued u/s 142(1) of the Act, returned income was accepted. Subsequently, ld. Pr. CIT called for the assessment records and issued show cause notice u/s 263 of the Act which reads as under:
I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. “Sub: Show cause notice u/s 263 of the IT Act 1961, of the order passed u/s 153A/143(3) dated 26.12.2017 for AY 2014-15, PAN AADCP9033E. Please refer to the above 2. I have examined the above mentioned assessment order along with the case record revealing that loan taken by the assessee company from the following entities are accepted SI Name of the assessee PAN Loan amount in No. Rs. 1 Waltare Investment Pvt. Ltd. AAACW2314A 3000000 2 Panchkuti Traders Pvt. Ltd. AAGCP4271P 1500000 3 Parking Marketing Pvt. Ltd. AABCP9517D 3000000 4 Pratush Consultant Pvt. Ltd. AACCP0680L 1000000 5 Tanisha Business Pvt. Ltd. AAACT9270A 1000000 Total 9500000 Whereas in the assessment order in the case of M/s United Nanotechnologies Limited for A.Y. 2014-15, another group company under same CMI Group, it was found that M/s. Waltare Investments Pvt. Ltd is found to be non-existing and discussed as paper companies having no substantial business activities, controlled and managed by Shri Pawan Kumar Drolia. The statement of Shri Pawan Kumar Drolia was mentioned to have been recorded under oath wherein he has accepted those entities to be shell companies having no actual worth and further accepted that those entities are involved in providing accommodation entries. Even Rs.10,00,000/- shown as loan from M/s Waltare Investments Private Limited was treated to be bogus in the said assessment order in the case of M/s United Nanotechnologies Limited for A.Y. 2014-15 and added u/s 68 of the Act. MCA data and 1TD shows no actual worth against them. AO after proper enquiry in the case of M/s United Nanotechnologies Limited mentioned those entities lack credit worthiness of their own. Therefore it equally applies in the case of M/s Prabhu Poly Pipes Ltd (The assessee Company herein). It is found in the Assessment Order u/s,153A/143(3) of the IT Act ’61 passed on 26/12/2017 for the A.Y.2014-15 has not examined in details about the transaction in respect of the unsecured loan taken by the assessee company. The creditworthiness, identity of the loan provider and genuineness of the transaction was not examined. Thus, the order passed by the assessing officer is erroneous in so far as I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. prejudicial to the interest of revenue. I, therefore propose to initiate proceedings u/s 263 of the IT Act,1961 with respect to the issue as mentioned above. You are therefore requested to show cause as to why the aforesaid order passed by the assessing officer 153A/143(3) dated 26.12.2017 in your case for the AY 2014-15 should not be revised u/s 263 of the 1 T Act 1961 to correct the error mentioned in the para 2 & 3.”
In reply to the above said notice detailed written submission was filed mainly contending that no incriminating material found during the course of search and the information was called for by ld. AO regarding unsecured loan of Rs. 95,00,000/- which appeared in the audited balance sheet. Further, it was submitted that ld. AO examined every aspect of the claim of the assessee and being satisfied with the documents/records, submitted in respect of the claim decided in the manner that was considered by him to be lawful and just. However, ld. Pr. CIT was not justified and he held the order of ld. AO erroneous and prejudicial to the interests of the Revenue as the same has been passed without making enquiry for verification. Ld. Pr. CIT also observed that there were certain incriminating materials found during the course of search and unsecured loans were taken from various shell companies which were controlled by Mr. Pawan Kumar Drolia who accepted it in the statement given under oath and in one of the group concerns, M/s. United Nanotechnologies Limited addition has been made in AY 2014-15 for the unexplained cash credit u/s 68 of the Act for the loan of Rs. 10,00,000/- taken from M/s. Waltare Investments Pvt. Ltd. Since the assessee has also taken the loan from the said company which is accepted to be a shell company, ld. AO failed to enquire in this aspect. With these directions the I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. assessment order was set aside to be framed afresh by making proper and adequate verification.
Aggrieved, the assessee is now in appeal before this Tribunal. Ld. Counsel for the assessee referring to the written submissions filed before ld. Pr. CIT again asserted the fact that no incriminating material has been found during the course of search and since the assessment year under consideration falling under the category of completed assessment, addition can only be made if any incriminating material was found during the course of search. Reliance placed on various judicial pronouncements. The index of paperbook containing the details filed herein as well as decisions referred by ld. Counsel for the assessee is extracted below: 1. Copy of notice 06 03.2017 issued u/s.142(1) 2. Reply dt.15.09.2017 to notice u/s.142(1) 3. Statement of account of: i) M/s. Waltare Investment (P) Ltd for the period ranging from 01.04.2013 to 31.03.2018 ii) M/s. Tanisha Business (P) Ltd for the period ranging from 01.04.2013 to 31.03.2018 iii) M/s. Panchkuti Traders (P) Ltd for the period ranging from 01.04.2013 to 31.03.2018 iv) M/s. Pratush Consultant (P) Ltd for the period ranging from 01.04.2013 to 31.03.2018 v) M/s. Parkin Marketing (P) Ltd for the period ranging from 01.04.2013 to 31.03.2018 4. Copy of relevant bank statement of the assessee 5. Order of the Gujarat High Court in the case of CIT Vs. Ayachi Chandrashekhar Narsangji [2014] 42 taxmann.com 251 (Gujarat)
I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd.
Delhi High Court order in the case of dT Vs Kabul Chawla [2015] 61 taxmann.com 412 (Delhi) 7. Delhi High Court order in the case of CIT Vs Kurele Paper Mills (P) Ltd [2017] 81 taxmann.com 82 (Delhi) 8. Calcutta High Court order in the case of dT Vs Veerprabhu Marketing (P) Ltd [2017] 81 taxmann.com 82 (Delhi) 9. Balance Sheet A Profit A Loss Account of the assessee for the year ended 31.03.2014 6. We have heard rival contentions and perused the records placed before us. The assessee has challenged that the order framed u/s 263 of the Act is arbitrary, illegal and deserves to be quashed and that ld. Pr. CIT erred in holding the assessment order dated 26.12.2017 passed u/s 153A/143(3) of the Act as erroneous so far as prejudicial to the interests of the Revenue.
7. We observe that a search action was conducted at CMI Group of companies on 06.10.2015 which also included the assessee company. The crux of the observation of ld. Pr. CIT is that during the course of search, CMI Group was found to be engaged in taking accommodation entries. One of the group concerns M/s. United Nanotechnologies Limited was assessed for AY 2014-15 and no addition was made u/s 68 of the Act for unexplained cash credit towards accommodation entry taken from alleged shell company namely M/s. Waltare Investments Pvt. Ltd. Ld. Pr. CIT observed that since the assessee company has also taken unsecured loan from M/s. Waltare Investments Pvt. Ltd. and in another group concern, ld. AO has treated M/s. Waltare Investments Pvt. Ltd. as shell/paper company, ld. AO while conducting the assessment I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. proceedings in the case of the assessee ought to have examined this aspect before completing the assessment.
We find that the provision of Section 263 of the Act has direct bearing on the issue raised before us, therefore, it is pertinent to take note of this section which reads as under: "263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded." 8.1. On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pendency of those proceedings. On an analysis of the record and of the order passed by the Assessing Officer, he formed an opinion that such an order is erroneous in so far as it is prejudicial to the interests of the Revenue. By this stage the learned Commissioner was not required the assistance of the assessee. Thereafter the third stage would come. The learned Commissioner would issue a show cause notice I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. pointing out the reasons for the formation of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. He may set aside the order and direct the Assessing Officer to pass a fresh order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263. 8.2. Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 243 ITR 83 (SC) has laid down following ratio with regard to provisions of section 263 of the Act: “There can be no doubt that the provision 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. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. 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, for example, when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the ITO has taken one view with 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 ITO is unsustainable in I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue - Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC). [Emphasis Supplied]”
Now, examining the facts of the instant case in light of the position of law and provision of Section 263 of the Act, we on perusal of the paperbook, find that a notice u/s 142(1) of the Act was issued on 06.03.2017 and referring to the loose sheets seized vide ID Mark-CMIC/3, Page No. 13 to 28 the assessee was asked to provide details of unsecured loan taken during the year. Specific details were given by ld. AO in ‘Point no.-E’ of the consolidated questionnaire for AY 2010-11 to AY 2015-16 and the same is reproduced below: “It is observed from a bunch of loose sheets seized vide ID mark CMIC/3, page no. 13 to 28 from the office premises of CMI Group at the Chatterjee International Centre, 33A, J. L. Nehru, 12lh floor, Kolkata-71 that group companies of CMI have been taken unsecured loans from the following companies in various financial year. The details of the same are for the year ended on 31/03/2015 as follow as; Sl. Name of group Company from Rate of Amount No. company whom taken loan Interest 1. M/s United Ashish Vincom 50,00,000/- 11% Nanotechnologies Pvt Ltd 2. M/s United Nilratan Vanijya 9,00,000/- 11% Nanotechnologies Pvt Ltd 3. M/s United Swift Tie up Pvt 25,00,000/- 11% Nanotechnologies Ltd M/s United Pratush 4. Nanotechnologies Commercial Pvt 25,00,000/- 11% Ltd M/s United Waltare 5. Nanotechnologies Investment Pvt 10,00,000/- 11% Ltd I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd.
6. M/s United Orissa Rerollers 55,00,000/- 11% Nanotechnologies Pvt Ltd.
M/s United Salasar Shelter 15,00,000/- 11% Nanotechnologies Pvt Ltd 8. M/s United Simpro Vanijya 25,00,000/- 11% Nanotechnologies Pvt Ltd 9. M/s United Swarnaganga 5,00,000/- 11% Nanotechnologies Vinimoy Pvt Ltd.
10. M/s Prabhu Poly M/s Panchkuti 15,00,000/- 10.50% Color Ltd Traders Pvt Ltd 11. M/s Prabhu Poly M/s Tanisha 10,00,000/- 10.50% Color Ltd Business Pvt Ltd 12. M/s Prabhu Poly M/s Orissa 35,00,000/- 10.50% Color Ltd Rerollers Pvt Ltd.
M/s Chandramukhi M/s D S Stock & 30,00,000/- 11% Iinpex Ltd Securities Pvt Ltd.
M/s Chandramukhi M/s Maxi Finance 25,00,000/- 11% Impex Ltd Pvt Ltd 15. M/s Chandramukhi M/s Orissa 55,00,000/- 11% Impex Ltd Rerollers Pvt Ltd. M/s Chandramukhi M/s Parkin 16. Impex Ltd Marketing Pvt 25,00,000/- 11% Limited M/s Chandramukhi M/s Swarn 17. Impex Ltd Ganga Vinimoy 20,00,000/- 11% Ltd M/s Chandramukhi M/s Waltare 18. Impex Ltd Investment Pvt 25,00,000/- 11% Ltd M/s Chandramukhi M/s Welon 19. Impex Ltd Advisory Services 20,00,000/- 11 % Pvt Ltd M/s Chandramukhi M/s Globus 20. Impex Ltd Capital Markets 37,50,000/- 11% Pvt Ltd M/s Chandramukhi M/s Kala Nidhi 21. Impex Ltd Commercial Pvt 7,00,00/- Ltd 22. M/s Chandramukhi M/s Khushi Exim 8,00,000/- Impex Ltd Pvt Ltd 23. M/s Chandramukhi M/s Agarwal 25,00,000/- Impex Ltd Exim Pvt Ltd.
M/s Chandramukhi M/s Ashish 60,00,000/- Impex Ltd Vincom Pvt Ltd M/s Chandramukhi M/s Emkays 25. Impex Ltd Investment Pvt 5,00,000/- Ltd I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd.
M/s Chandramukhi M/s Pearl Tracon 60,00,000/- Impex Ltd Pvt Limited 27. M/s Chandramukhi M/s Ruby Commerce Pvt Ltd 25,00,000/- Impex Ltd You are requested to submit the documents authenticating the genuineness of the transaction of unsecured loan mentioned above, identification of the person who had given you such loan and the creditworthiness of the loan creditors indicating the financial year in which such loan was credited in your account.”
In the above list, name of the assessee company appears at Sl. No. 10, 11 & 12 and the same pertains to unsecured loan taken from M/s. Panchkuti Traders Pvt. Ltd., M/s. Tanisha Business Pvt. Ltd & M/s. Orissa Rerollers Pvt. Ltd. at Rs. 15 lakh, Rs. 10 lakh & Rs. 35 lakh respectfully. Further, in ‘Point No.-J’ also for AY 2010- 11 to AY 2015-16 the assessee was required to file the list of persons from whom unsecured loan has been taken. A reply to the said notice has been filed by the assessee on 15.09.217. Now on perusal of the audited balance sheet of the assessee company for AY 2014-15, we notice that in the list of unsecured loans from the directors and body corporates there are many companies and one of them is M/s. Waltare Investments Pvt. Ltd. for which the closing balance as on 31.03.2013 is Rs. 1,29,452/- and it increased to 32,27,447/- as on 31.03.2014. There is a fresh loan of Rs. 30 lakh from M/s. Waltare Investments Pvt. Ltd. Similarly, there is a fresh loan from Pratush Consultant Pvt. Ltd. at Rs. 10 lakh.
We notice that ld. AO has called for all the details of the unsecured loans taken by the assessee during the year and has also referred to the seized material in the notice issued u/s 142(1) of the Act and all necessary replies along with the evidences have been filed during the assessment proceedings. It is not the case of I.T.A. No.: 1126/KOL/2019 Assessment Year: 2014-15 M/s. Prabhu Poly Pipes Ltd. no enquiry rather it is a case where ld. AO has raised necessary queries with regard to the issue under consideration and on being satisfied with such details and accepting the identity, creditworthiness and genuineness of the cash creditors took a plausible view as provided under the Act and completed the assessment proceedings u/s 153A r.w.s. 143(3) of the Act. Ld. Pr. CIT in the impugned order has only given a general observation that ld. AO has not conducted the necessary enquiry but in the impugned proceedings has not given any specific finding as to what was the information which ld. AO has not called for and also has not given any comment on such information which ld. Pr. CIT was required to call for during the course of revisionary proceedings before holding the assessment order in question as erroneous and prejudicial to the interests of the Revenue. We, therefore, are of the considered view that since sufficient enquiry has been conducted regarding the unsecured loans taken by the assessee during the year and detailed submissions have been filed by the assessee, we find that the assessment order passed u/s 153A r.w.s. 143(3) of the Act dated 26.12.2017 is neither erroneous nor prejudicial to the interests of the Revenue. We, thus, do not concur with the finding of ld. Pr. CIT and quash the impugned order and restore the assessment order dated 26.12.2017.