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Income Tax Appellate Tribunal, JODHPUR BENCH,
Before: SHRI SANDEEP GOSAIN & SHRI VIKRAM SINGH YADAV
IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH, JODHPUR BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER ITA No. 04/JODH/2021 Assessment Year:2016-17 PI Industries Limited, Vs. Pr.CIT, Udaisagar Road, Udaipur. Udaipur-313001. PAN No. AABCP 2183 M
Assessee by Shri Amit Kothari, CA& Shri Abhinav Kothari, CA Revenue by Smt. Sanchita Kumar, CIT-DR Date of Hearing 10/08/2021 Date of Pronouncement 08/09/2021
O R D E R PER:SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order of the ld. Pr.CIT, Udaipur dated 05/03/2021 for A.Y. 2016-17 passed u/s 263 of the Income Tax Act, 1961 (in short, the Act) wherein following grounds have been raised :
“1. Theimpugned order u/s 263 of the I T Act, 1961 passed by the ld. Principal Commissioner of Income Tax, Udaipur is patently invalid, void, contrary to the provisions of law and also contrary to facts, material existing on records. 2. The ld. PCIT has erred in holding that the original assessment order dated 19.12.2018 passed by the Assessing Officer for the said assessment year
2 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT is erroneous and prejudicial to the interest of revenue and also setting aside the original assessment order and has further erred in restoring back to the AO to pass fresh assessment order with the following direction : (a) To make reference to TPO for computation of ALP after approval of PCIT as required u/s 92CA in respect of International Transaction of Rs. 2.87 crores with AEs and obtain report form him, thereafter modify the assessment order by making such addition. The ld. PCIT had failed to appreciate that the ld. AO had made total disallowance of such amount in the assessment order and matter was pending in first appeal. (b) To examine as to how and when such assets of Rs. 240.75 crores were acquired and installed accordingly take appropriate action for making disallowance of claim of deduction or part of claim of deduction u/s 32AC of the IT Act. The ld. PCIT had no firm conclusion that any addition made was not verifiable and there was only a suspicion or surmises. (c) To examine from records of the assessee and form books of accounts and documentary evidences and find out as to whether claim of deduction of Rs. 300860481/- as made u/s 35(1)(iv) of the IT Act includes any expenditure on acquisition of land after 29.2.1984 or not. Further also examine whether claim of deduction of Rs. 300860481 u/s 35(1)(iv) of the IT Act is an approved research and development unit. (d) To examine deduction u/s 80IA on power generation unit though the full deduction was disallowed by the ld. AO in the assessment order. The direction in this regard are vague and non specific. (e) To make to the total income and/ or to the book profit u/s 115JB wherever required in accordance with the provisions of the Income Tax as discussed in para 12 of the order u/s 263. 3. That the order passed originally by the assessing Officer under section 143(3) of the Income Tax was neither erroneous nor prejudicial to the interest of Revenue, therefore the impugned order passed u/s 263 by the ld. Principal Commissioner of Income Tax, Udaipur is bad in law and
3 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT clearly beyond the ambit of section 263 of the IT Act and liable to be quashed. 4. The appellant crave leave to add, alter, amend and modify any grounds of appeal on or before the date of hearing.” 2. The assessment order for AY 2016-17 was completed u/s 143(3) of the Act vide order dated 19.12.2018. The PCIT issued notice on 16.12.2020 u/s 263 of the Act and observed that the said assessment order was erroneous as well as prejudicial to the interest of revenue on the ground that there were large outward remittance to a non resident not being a company or to a foreign company for which Form 15CA was issued, further the deduction was being claimed u/s 32AC, deduction claimed u/s 35(1)(iv) of the Act and Various issues raised in AO notice dated 29.8.2018 which needs to be properly examined. Against the order dated 05.3.2021 u/s 263 of Act, the assessee is in appeal.
The contention of the assessee is that the impugned order is not maintainable since the mandatory statutory requirement provided in the Act for a valid assumption of jurisdiction u/s 263 remains unfulfilled and unsatisfied. It is further stated that the provisions of section 263 can be validly invoked only if the twin conditions that the order is erroneous and that it is prejudicial to the interst of revenue only than such action could have been taken and relied upon the decision of Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd. 243ITR 83 (SC). As per the principles laid down in the case of Malabar Industrial
4 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT Co. Ltd both the conditions must co-exist and even if one of the condition is absent recourse cannot be had to the provisions of section 263.
The assessee pleaded that in the light of the law declared by the Hon’ble Supreme Court in the case of Malabar none of the grounds stated in the impugned notices constitute a valid ground or basis for the lawful assumption of jurisdiction u/s 263 of the Act. A perusal of the impugned notice issued reveals that the provisions u/s 263 of the Act has been proposed to be invoked on the solitary ground that the Assessing Officer has not made proper inquiries during the course of assessment proceedings without bringing on record any finding or pointing out any material as to how the assessment order is erroneous and has caused loss to the revenue.
The assessee further pleaded that a bare statement to the effect that the AO has not done proper inquiries per se doesn’t constitute a valid basis for assuming jurisdiction u/s 263 of the Act. It is a settled law that the provisions of section 263 cannot be invoked on mere presumptions or suspicion that an inquiry might have unearthed any escaped taxable income as held by the Hon’ble Delhi High Court in its judgment in the case of CIT vs. Leisure Wear Exports Ltd. (2010) 46 DTR (del) 97wherein the Hon’ble Court while relying upon the principle laid down by the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd 243 ITR 83 (SC) has held that in the entire order emphasis laid by the CIT is that
5 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT in respect of four issues mentioned by him, no queries were raised by the AO. On this premise, though it is observed that there was no application of mind on the part of the AO and the AO has not recorded any reasons to justify the omission to consider the said facts, the CIT does not take the said order to its logical conclusion which was the prime duty of the CIT in order to justify exercise of power under s.263. There is not even a whisper thatthe order is erroneous. Even if it is inferred that non-consideration of the issues pointed out by the CIT would amount to an erroneous order, it is not stated as to how this order is prejudicial to the interest of the revenue.
The assesseefurther pleaded that the facts of the said judgment of the Hon’ble High Court are identical to facts and circumstances of the present case in as much as in the said case also the provisions of section 263 of the Act were invoked on the ground that the AO had not raised queries in relation to certain issues which is precisely the case in hand wherein it has been proposed to invoke the provisions of section 263 on the solitary ground that the AO has not raised any queries regarding the issues stated in the impugned notice. Thus, the said judgment pronounced by the Hon’ble Delhi High Court is squarely applicable to the facts and circumstances of the present case thereby rendering the impugned show cause notice as unwarranted and without jurisdiction and the same is
6 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT accordingly prayed to be revoked and nullified at this stage itself in the interest of substantial justice.
The assessee further stated that even as the assessment order, notices issued under u/s 143(2) and 142(1) had been duly and fully complied with and all the details and information were duly submitted and examined during the course of assessment proceedings.
The assessee replying on the decision of Hon’ble Delhi High Court in the case of CIT Vs. Vikas Polymers (2010) 236 CTR (Del) 476 mentioned that mere absence of the reference in the Assessment Order of the query raised during the course of assessment proceedings, doesn’t lead to the conclusion that the Assessing Officer has not applied his mind. The assesse for the aforesaid proposition of law places reliance on the decision by the Hon’ble Delhi High Court in the case of CIT Vs. Vikas Polymers (2010) 236 CTR (Del) 476 wherein it has been observed that “A bare reiteration by him that the order of the ITO is erroneous in so far as it is prejudicial to the interest of the Revenue, will not suffice. If a query is raised during the course of scrutiny by the AO, which was answered to the satisfaction of the AO, but neither the query nor the answer was reflected in the assessment order, this would not by itself lead to the conclusion that the order of the AO called for interference and revision.
7 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT 9. The assessee further relied on the case CIT v. Sunil Sankhla (2019) 411 ITR 437 (Raj.)(HC), the Hon’ble Jurisdictional High court where it was observed that theCommissioner passed the revision order on the ground that the AO has passed the order without verification. Tribunal held that the AO has passed the order after examining the details and the financial statements had accepted the business profit declared by the assessee and had adopted a view that the order passed by the Assessing Officer was not prejudicial to the interests of the Revenue and that the Principal Commissioner was not justified to replace the Assessing Officer’s view. High Court up held the order of the Appellate Tribunal. The assessee contended that in the present case also the order was made after due verification of the details submitted. The assessee also relied on the following cases with regard to the very jurisdiction invoked under section 263 and submits that in absence of the twin conditions being satisfied, the revision was not justified. a. C I T-1 Jaipur vs M/S Green Triveni Developer on 24 October, 2017(Rajasthan) D.B. Income Tax Appeal No. 114 / 2015. b. CIT v. Max India Ltd. (2007) 295 ITR 282 (SC) c. CIT v. Rajiv Arora (DBITA 283/2010 dated 28.08.2017 (Rajasthan) d. CIT v. Deepak Real Estate Developers (India) Pvt. Ltd. (DBITA 581/2011 dated 03.03.2014 Rajasthan High Court) e. CIT v. Reliance Communication Ltd. (2016) 76 Taxmann.com 226 (SC), f. CIT vs. Mahavir Spinning Mills Ltd. (2008) 303 ITR 353 g. CIT vs. PANKAJ DHIRAJLAL DHRUVE (2008) 305 ITR 332
8 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT h. CIT vs. Nahar Exports Ltd. (2008) 173 TAXMAN 3 i. Virendra Kumar Jhamb vs. CIT (2009) 222 CTR (Bom) 88 j. CIT V/s. GirdhariLal (2002) 258 ITR 331 (Raj) (DB) k. CIT V/s. ArvindJewllers (2002) 259 ITR 502 l. CIT V/s. Shiv HariMadhu Sudan (1998) 233 ITR 649 (Raj) m. CIT V/s. Mehsana District Co-operative Milk Producers Union Ltd. (2003) 263 ITR 645 (Guj) 10. In regard to the reference to the TPO is concerned, the assessee referred to para 3 of the CBDT Instruction No. 3/2016, F.No. 500/9/2015-APA-II Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, Foreign Tax and Tax Research Division-I, APA-II Section, New Delhi, dated 10th March, 2016, which read as “3. Reference to Transfer Pricing Officer (TPO)”.
The power to determine the Arm’s Length Price (ALP) in an international transaction or specified domestic transaction is contained in sub- section (3) of Section 92C. However, Section 92CA provides that where the Assessing Officer (AO) considers it necessary or expedient so to do, he may refer the computation of ALP in relation to an international transaction or specified domestic transaction to the TPO. For proper administration of the Income-tax Act, the Board has decided that the AO shall hence forth make a reference to the TPO only under the circumstances laid out in this Instruction.
9 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT 12. All cases selected for scrutiny, either under the Computer Assisted Scrutiny Selection [CASS] system or under the compulsory manual selection system (in accordance with the CBDT’s annual instructions in this regard-for example, Instruction No.6/2014 for selection in F.Y 2014-15 and Instruction No. 8/2015 for selection in F.Y 2015-16), on the basis of transfer pricing risk para meters [in respect of internationall transactions or specified domestic transactions or both] have to be referred to the TPO by the AO, after obtaining the approval of the jurisdictional Principal Commissioner of Income-tax (PCIT) or Commissioner of Income-tax (CIT). The fact that a case has been selected for scrutiny on a TP risk parameter becomes clear from a perusal of the reasons for which a particular case has been selected and the same are invariably available with the jurisdictional AO. Thus, if the reason or one of the reasons for selection of a case for scrutiny is a TP risk parameter, then the case has to be mandatorily referred to the TPO by the AO, after obtaining the approval of the jurisdictional PCIT or CIT.
The assessee referred to clause 3.2 of the CBDT circular and mentioned that the assessee case was not selected for scrutiny based on Transfer price risk parameter. In this regard the assessee mentioned that provisions of section 92CA which also says that where it is necessary or expedient to do so the AO
10 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT may refer to the TPO, which also indicates that the reference to the TPO is not mandatory, and it is the judicial decision of the AO to make such a reference.
The assesseefurther mentioned that the assessee case does not fall under clause 3.3, which read as under: 3.3 Cases selected for scrutiny on non-transfer pricing risk parameters but also having international transactions or specified domestic transactions, shall be referred to TPOs only in the following circumstances: (a)where the AO comes to know that the taxpayer has entered into international transactions or specified domestic transactions or both but the taxpayer has either not filed the Accountant’s report under Section 92E at all or has not disclosed the said transactions in the Accountant’s report filed; (b)where there has been a transfer pricing adjustment of ₹10 Crore or more in an earlier assessment year and such adjustment has been upheld by the judicial authorities or is pending in appeal; and (c)where search and seizure or survey operations have been carried out under the provisions of the Income-tax Act and findings regarding transfer pricing issues in respect of international transactions or specified domestic transactions or both have been recorded by the Investigation Wing or the AO. 15. The assessee mentioned that the assessee case does not attract any of the condition stipulated above and therefore, no reference was required to be made to the TPO. The assessee also mentioned that each of the query of the AO was replied, the fact which is not denied by the PCIT in his order. The assessee submitted that in the course of assessment proceedings, the assessee submitted letter dated 3.1.2018 / 6.12.2018 with the audit report u/s 92E of the IT act in form 3CEB evidencing the international and specified domestic transactions done
11 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT during the year. The same were thereafter verified by the Ld AO during the course of assessment proceedings and when the books of accounts and vouchers were submitted before him for verification and he did not draw any adverse inference therefrom.
In regard to the claim u/s 80IA and 80IB, the assessee submitted form 10CCB, which is on record. In so far as deduction u/s 80JJA, the assessee submitted form 10DA which is on record. The assessee further submitted that the AO during the course of assessment proceedings and when the books of accounts and vouchers were submitted before him for verification did ot agree with the assesse’s submission and disallowed the claim u/s 80IA on CPP unit and 80IB on Jammu unit as discussed by him in the assessment order framed for the year and therefore PCIT to say that AO did not apply his mind is contrary to the facts on record. Each head of the expenses was verified by the Ld AO during the course of assessment proceedings and when the books of accounts and vouchers were submitted before him for verification and he did not draw any adverse inference therefrom.
In regard to the claim u/s 32AC on account of investment in new plant and machinery is concerned, the assessee submitted that the assesse claimed a deduction of Rs 36,11,30,696 being 15% of the investment of Rs 2,40,75,37,974/. The PCIT in his query letter have concurred with the fact that
12 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT investment of Rs 240.75 crores was in fact made by the assessee and the only shortcoming observed by him was that the AO has not conducted the required verification before allowing deduction and due to which the assessment order u/s 143(3) of the IT Act for AY 2016-17 is erroneous in so far as its prejudicial to the interest of revenue.In this regard the assessee submitted that all the details of additions in the fixed assets were submitted, and even all books and vouchers were presented to the AO, he had examined the same and after satisfaction allowed the deduction as claimed by the assessee u/s 32 AC and submitted that had he drawn any adverse inference on the additions or the claim itself, the assessee claim would have been rejected or modified, which was not the case. Merely that he has not mentioned anything about the claim of the assesse u/s 32AC in his assessment order will not make the assessment order to be an erroneous order requiring proceedings u/s 263 of the Act.
In regard to the claim u/s 10AA of Rs 23,13,60,246, the assessee submitted that the report in form 56F alongwith the relevant documents were filed, which are record. After due satisfaction about the claim of the SEZ, which was set up in the FY 2012-13, the AO allowed the claim. The assessee further submitted that the year under reference was not the first year of the claim. Further there was no change in the nature of the business at SEZ for the
13 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT purpose of claim u/s 10AA of the Act. The claim was examined by the AO and after due satisfaction allowed the deduction u/s 10AA.
In regard to the claim u/s 80IA(4)(iv) of Rs 97,24,906, the assessee submitted the report in form 10CCB alongwith the relevant documents were are on record. The assessee further submitted that the AO had in fact disallowed the entire claim and amount was added back to the total income, which is evident from the assessment order for the year under reference. The fact that the entire claim of the assessee was rejected by the AO, the question about the rate per unit is infructuous and have no relevance. The mere fact that the claim was rejected by the Ld AO clearly establish the fact that AO has in fact considered all the submissions very carefully and each and issue was minutely examined by him in the course of assessment proceedings. In any case there is no prejudice to the revenue, rather the assessee has a grievance that such bonafide claim had been rejected. Therefore selectively picking up the issues against the assessee, is against the principles of natural justice.
In regard to the claim u/s80IB for Rs 1,09,64,103, the assessee submitted that the report in form 10CCB was filed with the AO and is on record. The AO after thorough examination of the books of accounts and vouchers submitted to him, restricted the claim to Rs 1,09,48,888 with a disallowance of Rs 15215/-. The mere fact that the claim was modified by the AO clearly establish the fact
14 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT that AO has in fact considered all the submissions very carefully and each and issue was minutely examined by him in the course of assessment proceedings. Therefore selectively picking up the issues against the assessee is against the principles of natural justice.
In regard to claim u/s 35(1)(iv) of the Act, the assessee submitted that it made expenditure of capital nature of Rs 3008.60 lacs on scientific research related to the business carried on by the assessee. The R&D facility is duly approved by DSIR and copy of the approval was submitted to the AO in the course of assessment proceedings. The assessee submitted that the above capital expenditure was not considered for claim u/s 35(2AB) of the IT act nor for the claim of depreciation u/s 32 of the IT act. These facts were verified by the AO in the course of assessment proceedings and when the books of accounts were submitted to him for examination.
In regard to claim u/s 35(2AB) of the Act, the assessee submitted that deduction u/s 35 (2AB) of the IT Act 1961 amounting to Rs. 988,415,684/- being 200% of total expenditure on Research & development of Rs. 494,207,842/- is based on report submitted to DSIR. Thereafter, the Government of India Ministry of Science & Technology, Department of Scientific and industrial Research, Technology Bhawan New Delhi vide its letter No. TU/IV-15(493)/2017 dated 3.11.2017 in Form 3CM alongwith Form 3CL restricted the eligible
15 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT expenditure for Research & Development at Rs. 492,397,000/- as against Rs. 494,207,842/- and accordingly the assessee revised the claim of deduction U/s 35(2AB) of the IT Act 1961 which is due to reduced sanction by DSIR, Govt of India at Rs. 984,794,000/- ( being 200% of Rs 492,397,000/-) as against original claim of Rs. 988,415,684/-. Accordingly the AO allowed the claim of assesse @200% of Rs 4923.97 i.eRs 9847.94 lacs, which was in conformity to the provision of sec 35(2AB) of the IT act. The mere fact that the claim was modified by the AO establish the fact that AO has in fact considered all the submissions very carefully and each and issue was minutely examined by him in the course of assessment proceedings. Therefore selectively picking up the issues against the assessee is against the principles of natural justice.
The ld. CIT DR relied on the PCIT’s order and submitted that in view of the Explanation 2 inserted in section 263, the PCIT has a vide power u/s 263, and where ever it is found that due enquiry as required has not been made, such order can be directed to be reframed in accordance with the law. The contention of the CIT DR was that if the due enquiry as required was not made assessment was rightly set aside, and there is no need to go into the integrity of each issue.
We have considered the rival contentions, carefully perused the material placed on record and also considered the order u/s 263 and his observation therein and assessee’sreply to the PCIT and the original assessment order and
16 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT are of the view that the assesseehas furnished all information as asked for by AO during the course of assessment proceedings and which have been duly considered by him as evident from the assessment order. The AO had issued detailed questionnaire raising various issues which were also replied by the assessee from time to time. The assessee had also appeared personally and filed the detailed replies to all the queries raised and books of accounts were also produced. We also find that even on the issues on which the addition had been made by AO in the assessment order are subject matter of 263 proceedings, which by no means can be regarded as erroneous or prejudicial to the interest of revenue. The PCIT has failed to specify as to how and on what ground the assessment order is erroneous and/ or which part of the CBDT instructions were not adhered to by the AO. Merely not recording the satisfaction, the AO on the records does not make the assessment order erroneous and prejudicial to the interest of revenue, as is decided in the various judicial pronouncement by various courts. We have also perused Instruction no 3/2016 and are of the opinion that it was not mandatory for the AO to make a reference to the TPO. Even as per the order and the show cause notice u/s 263 which has been issued it is evident that the selection of the case was for complete scrutiny and the issues was not on transfer pricing parameters risk factors. The Instruction No. 3 of 2016 in para 3.3 states that where cases are selected for scrutiny on non transfer pricing risk parameters but also having international transactions or
17 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT specified domestic transactions, shall be referred to TPO in specified circumstances. The said clause 3.3.of the Instruction specifies three situations and we find that none of the situation is applicable in the case of the assessee. The clause (a) states where there are international transactions or specified transactions or both and the taxpayer has not filed any report required to be submitted under section 92E. This is not a situation in the case of the assessee, and report was submitted and also during the assessment the same was submitted. The second situation where in previous assessments if any addition on account of transfer pricing adjustment of more than ten crores and addition being upheld in appellate proceedings is also not applicable in the case of the assessee, and this is not a case where search or seizure or survey operations had been carried out. In such a situation it cannot be said that the assessment is erroneous as reference to TPO was not made.
We also find that on similar issue the Delhi Bench of ITAT had occasion to examine this issue in the case of M/s Amira Pure Foods Private Limited vs. PCIT in ITA No. 3205/Del/2017, in which following the decision of Hon’ble Delhi High Court in the case of Delhi Airport Metro Express Ltd. reported in (2017) 398 ITR 8 (Delhi) in which it has been held as under: “It is seen, in the order dt. 30th March 2016, the Principal CIT has proceeded by setting out the contents of the show-cause notice and the contents of the reply given by the assessee. It appears that no inquiry, as such, was undertaken by the Principal CIT to come to the conclusion that the original assessment order was erroneous and
18 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT prejudicial to the interests of the Revenue. For the purposes of exercising jurisdiction under s. 263, the conclusion that the order of the AO is erroneous and prejudicial to the interests of the Revenue has to be preceded by some minimal inquiry. In fact, if the Principal CIT is of the view that the AO did not undertake any inquiry, it becomes incumbent on the Principal CIT to conduct such inquiry. All that Principal CIT has done in the impugned order is to refer to the Circular of the CBDT and conclude that "in the case of the assessee-company, the AO was duty bound to calculate and allow depreciation on the BOT in conformity of the CBDT Circular No. 9 of 2014 but the AO failed to do so. Therefore, the order of the AO is erroneous insofar as prejudicial to the interest of revenue. This can hardly constitute the reasons required to be given by the Principal CIT to justify the exercise of jurisdiction under s. 263. In the context of the present case if, as urged by the Revenue, the assessee has wrongly claimed depreciation on assets like land and building, it was incumbent upon the Principal CIT to undertake an inquiry as regards which of the assets were purchased and installed by the assessee out of its own funds during the assessment year in question and, which were those assets that were handed over to it by the DMRC. That basic exercise of determining to what extent the depreciation was claimed in excess has not been undertaken by the Principal CIT. It was argued that the Principal CIT had exercised the second option available to him under s. 263(1) by sending the entire matter back to the AO for a fresh assessment. That option, in the considered view of the Court, can be exercised only after the Principal CIT undertakes an inquiry himself in the manner indicated hereinbefore. That is missing in the present case. Tribunal was not in error in setting aside the impugned order of the Principal CIT under s. 263. No substantial question of law arises. 26. We may also refer to the findings of the ITAT Delhi Bench in the case of Amira Pure Foods Private limited reported in (2018) 63 ITR (Trib) 355 (Delhi) in which it has been observed as under : “29. We are also of the view that as per instruction No. 3 of 2016, it was not mandatory for the AO to make a reference to TPO. The assessee had explained before the learned Principal CIT that its case does not fall under the conditions referred to in the instruction No. 3 of 2016 and as such it wasn’t obligatory for the AO to make a reference to TPO. The learned Principal CIT has not dealt with this contention of the assessee and has given a bald finding that AO should have referred to TPO as per instruction No. 3 of 2016. The learned Principal CIT has not specified under which condition of instruction No. 3 of 2016, the AO should have referred to TPO. The argument of the learned Departmental Representative that selection under CASS was
19 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT made because of mismatch in foreign remittent and Form 15CA, also doesn’t help the cause of the Revenue. As per r. 37BB, the reporting in Form 15CA is in respect of payment made to non-resident not being a company or to a foreign company. The reporting is not limited or is not particularly in respect of payment made to associated enterprise. We are of the view that the CASS selection was not on the basis of TP risk parameters as envisaged in instruction No. 3 of 2016 and as such the AO was not bound to make a reference to the TPO. 30. The assessee had filed various replies to the learned PCIT in response to notice under s. 263 of the Act stating that all the issues raised by the learned Principal CIT have been examined by the AO during the course of assessment. The learned Principal CIT has ignored the replies of the assessee. He merely states that the reply has been filed by the assessee but he nowhere discusses the contentions raised by the assessee and why he does not agree with the contentions of the assessee. The learned Principal CIT has merely remitted the matter back to the AO without making any enquiry himself. The learned Principal CIT has mentioned that the fresh loans have not been examined by the AO. The learned Principal CIT has not considered the contentions of the assessee that there is no fresh loan. Similarly, the other replies of the assessee filed during the course of assessment and in response to notice under s. 263 of the Act have been totally ignored. No enquiry has been made by the learned Principal CIT. It was incumbent for the learned Principal CIT to make some minimum independent enquiry to reach to the conclusion that the order of the AO is erroneous and prejudicial to the interest of revenue. The reliance is rightly placed on the decisions of Delhi High Court in learned Principal CIT vs. Delhi Airport Metro Express (P) Ltd. (supra) and ITO vs. DG Housing Projects Ltd. (supra). The Hon’ble Delhi High Court in Delhi Airport Metro Express (P) Ltd. (supra) has made the following observation: "10. For the purposes of exercising jurisdiction under s. 263 of the Act, the conclusion that the order of the AO is erroneous and prejudicial to the interests of Revenue had to be preceded by some minimal inquiry. In fact, if the learned Principal CIT is of the view that the AO did not undertake any inquiry, it becomes incumbent on the learned Principal CIT to conduct such inquiry." 31. The learned Principal CIT has not referred to Expln. 2 of s. 263 of the Act which has been inserted w.e.f. 1st June, 2015 however we agree with the finding of the Co- ordinate Bench in the case of Narayan Tatu Rane (supra), wherein it has been held that explanation cannot said to have overridden the law as interpreted by the various High Courts, where the High Courts have held that before reaching a conclusion that the order of the AO is erroneous and prejudicial to the interest of revenue, the CIT himself has to undertake some enquiry to establish that the assessment order is
20 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT erroneous and prejudicial to the interest of revenue. In the case of Narayan Rane a doubt is also expressed regarding the applicability of Expln. 2, which was inserted by Finance Act 2015 w.e.f. 1st June, 2015, the bench also observed that if the explanation is interpreted to have overridden the law as laid down by various High Courts, then the same would empower the Principal CIT to find fault with each and every assessment order and also to force the AO to conduct enquiries in the manner preferred by the Principal CIT, thus prejudicing the mind of the AO, however, the intention of the legislature behind the explanation could not have been so as the same would lead to unending litigation and no finality in the legal proceedings. 27. In regard to the claim u/s 80IA(4)(iv) of Rs 97,24,906, we find that the said deduction had already been disallowed by the AO in the assessment order, and therefore the order on such issue cannot be said to be prejudicial to the interest of revenue. With regard to the claim u/s 35(2AB) of the IT Act, also we find that the deduction u/s 35 (2AB) of the IT Act 1961, was allowed on the basis of the expenditure based on the report submitted to DSIR. Thereafter, the Government of India Ministry of Science & Technology, Department of Scientific and industrial Research, Technology Bhawan New Delhi vide its letter No. TU/IV- 15(493)/2017 dated 3.11.2017 had restricted the eligible expenditure for Research, and accordingly the deduction was allowed in the assessment order, and the issue was again duly examined at the time of assessment, and no error in such claim has been pointed out to us. As regards claim u/s 10AA of Rs 23,13,60,246, the claim was allowed on the basis of report in form 56F and after examining the facts of the case, and this was not the first year of claim and was also allowed in the earlier years also.In light of above discussion we hold that the order u/s 263 cannot be sustained as we find that the assessment order passed
21 ITA 04/Jodh/2021 PI Industries Ltd. Vs PCIT by the AO cannot be said to be erroneous or prejudicial to the interest of revenue, and accordingly the order made u/s 263 of the is quashed. Sd/- Sd/- (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER Jodhpur Dated 08/09/2021 *Ranjan Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT (A) 5. The DR 6. Guard File
Assistant Registrar Jodhpur Bench