DCIT, KANNUR vs. M/S MANJOO & CO.,, KANNUR

Per CHANDRA POOJARI, AM:

This appeal by the Revenue is directed against the order of the CIT(A)-III, Kochi

dated 22/09/2017 and pertains to the assessment year 2006-07.

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36,94,613/- and that the addition of Rs. 6,85,47,229/- was a result of such verification. Hence the AO has not exceeded his jurisdiction, but has carried out the directions of CIT given in the order u/s 263. 2. The Learned CIT(A) has erred in deleting the addition of Rs. 6,70,59,121/- on the ground that the AO has exceeded his jurisdiction and gone beyond the directions given in the order u/s 263. The Learned CIT(A) has overlooked the fact that in Para 6 of the order u/s 263, the CIT has directed the AO to give effect to the order of the High Court in 1TA Nos.1216 & 1410 of 2009 dated 08/09/2010. The Assessing Officer, following the direction has brought to tax the sum of Rs. 6,70,59,121/- being winnings from lotteries chargeable to tax as per special provision under section 115BB.

total income of Rs.72,86,022/- on 31/03/2008 for AY 2006-07. The case was

selected for scrutiny and the assessment was completed u/s. 143(3) on 29/12/2008

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determining total income of Rs.79,70,414/-. On review of records, the CIT noticed

following discrepancies:

Notice u/s. 263(1) was issued to the assessee on 7-12-2010 pointing out the

mistakes,in the assessment order. The assessee submitted explanation dated 13-

12-2010. In respect of Point No. 1, the assessee submitted that the difference had

been explained in the Notes (Point No. 6) on accounts attached to the Statements

ot accounts, filed along with the return of income. It was found that the original

figures in the sold notes have been replaced, with handwritten figures representing

allegedly a different Gross and Net amounts. Thus, the total credits as per Notes to

Accounts was Rs.4,77,79,294.00 whereas as per handwritten notes it was Rs.15,

18,22,861/-. Again the total debits under this account as per notes was Rs.4,50,

78,726.65 whereas it was shown in the handwritten notes filed with the return of

income at Rs.14,89,47,653.65. Apparently, the receipts were much more than

those shown as per accounts and the payments shown also are much more which

needed to be verified. Regarding explanation to Point No.2, it was stated that the

figures relating to ‘Interest on Income Tax Refund' and 'Interest received' had been

erroneously interchanged in the statements of accounts filed which seems to be

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correct but needed to be verified. In respect of explanations to Points No 3 and 4

the explanations of the assessee was accepted. The assessee had in the return of

income filed, treated the winnings from unsold tickets as income from business

which was accepted by the Assessing Officer. The Tribunal had decided the issue in

favour of assessee and also as the tax effect was the same. The High Court in ITA

Nos.1216 &1410 of 2009 dated 08/09/2010 had held that the rate prescribed under

Sec. 115BB was applicable for the winnings from lottery received by the assessee

irrespective of whether it was an income incidental to business or not. The CIT held

that the order of the High Court has to be given effect to on these lines.

3.1 in view of the above, the CIT considered the order passed under section

143(3) dated 29-12-2008 as erroneous and prejudicial to the interest of revenue as

the same had been passed without making proper verification with regard to the

above issues. The CIT placed reliance on the judgment of the Calcutta High Court

In the case of . Reliance was also placed on the judgment of the Karnataka High

Court in the case of Thalibai S Jain [(1975) 101 ITR 1 (Kar)] wherein it was held that

the Commissioner was right in revising the assessment under section 263 of the Act. In that case, the Court observed that “since no such enquiry was made by the ITO ............. the assessment must be held to be prejudicial to the interests of

revenue and what is prejudicial to the interests of revenue must be held to be

erroneous though the converse may not always be true”.

3.2 According to the CIT, the above mistakes made the Assessment Order

erroneous and prejudicial to the interests of revenue, in that the Assessing Officer

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had not looked into these matters at all. Thus, the CIT set aside the issues to the

file of the Assessing Officer to redo the assessment. The CIT, therefore, remitted

the issues back to the Assessing Officer with a direction to redo the assessment

afresh in the light of the above observations and after giving the assessee

reasonable opportunity of being heard.

Winnings from lotteries (Non Taxable - below Rs.5000/-)

During the year the assessee received the following prize amounts in respect of

Kerala Lotteries as per the details received from Dist. Lottery Office, Kannur.

Details of Distribution of Minor Prizes (2005-06) (Non Taxable - Below Rs.5000/-).

Sl.No. Name of the Agent Prize Amount

Total Rs.6,78,90,336

4.1 When asked about the details of minor prizes on which TDS had not been

made, the assessee stated as follows:

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“As regards your query as to what is a Major Prize and what is a Minor Prize, we submit that we do not understand the terms. These Terminology has not been notified in the Lottery Schemes of the Lotteries of Kerala State Lotteries nor are they printed behind the tickets. We suggest that you may contact the Department of Kerala State Lotteries. We annex herewith proceedings of the various officers of the Department of Kerala State Lotteries in support of the fact that we have won prizes. These proceedings will give you all details of the winnings. All these winnings hbave been accounted for by in the our winnings form unsold Lottery Tickets.”

4.2 Thus, according to the assessee the details should be collected from lottery

office. The information obtained from District Lottery Office, Kannur showed that

from that office alone prize winning for Rs.5000/- and below paid to the assessee

was Rs.6,78,90,336/-. In the P&L account, the assessee had credited an amount of

Rs.8,31,215/- as "Unsold winning without TDS". Therefore, the difference came to

Rs.6,70,59,121/- (Rs. 6,78,90,336/- -Rs. 8,31,215/-). The assessee had not

furnished any detailed clarification on prizes won on small prizes. The assessee had

also not produced any documentary evidences that the small prizes are collected on

behalf of sold out tickets surrendered by others. Considering all these and

considering the fact that assessee had own sales, the receipts were considered as

winnings from lotteries and assessed accordingly. In assessee's own case, the High

Court of Kerala while considering the appeals for the A.Y.2000-01 and 2001-02

observed as follows.

"In our view winnings from lotteries is assessable under this special provision irrespective as to under what head winnings from lottery falls. Therefore, assuming for argument sake the contention of the respondent that winnings from lotteries is received by him in the course of his business and is incidental to business and so much so it is his business income is right, still, we feel in view of the specific provision contained in Section 115BB, the special rate of tax is applicable for all winnings from lottery. What is provided in the said Section is that where the total income includes any income by way of winnings from 6

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lottery or crossword puzzle etc, the income tax payable shall be calculated at the rate of 30%. Total income under Section 2(45) read with Section 5 of the Act includes income from all sources and necessarily all such income are computed under five heads referred to in A to F of section 14 of the Act. In other words, even after computation of income under various heads of income referred to in section 14 in terms of specific provisions of the Act providing for computation of income under each head. Such of the incomes specifically covered by Chapter XII shall be identified, separated and should be subject to tax at the special rate provided there. So much so in our view the special rate of tax i.e.

4.2 The assessment is completed as under:-I Income from Business

TotaJ, income as per order u/5.143(3) dt. 05.06.2009 Rs.7,97,70,414 Less: Winning from lotteries included in the above income considered separately (i) Prize winning for unsold tickets with TDS Rs. 38,98,310 (ii) Prize winning for unsold tickets without TDS Rs. 8,31,215 Rs. 47,29,525 Less: interest income considered separately Rs. 2,09,778

Rs.49,39,313 Rs.30,31,101

Add i) Difference in creditors account as discussed in Para 5 [2898692+5126296) Rs. 79,95,088

ii) Gross profit in retail business discussed in Para 4 Rs. 8,00,000

iii) Agent's Prize on tickets elaborately discussed in para 6 Rs.6,85,47,229

iv) Difference in Depreciation discussed in Para 13 Rs.31,347 Rs.7,73,73,664 Rs.8,04,04,765

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Income from Other Sources

(i) Interest on FD Rs.1,63,228 Rs.2,09,788

(ii) Interest on Income Rs. 46,560 tax refund

III Winnings from Lotteries As per Profit and Loss account Rs. 47,29,525 Add:(i) Difference as discussed in Para 11 Rs.6,70,59,121 (ii) Difference as Rs. 55,88,795 discussed in Para 12 Gross total income Rs. 7,73,77,441 Rounded to Rs.15,79,91,994

CIT(A) called for the Remand Report from the Assessing Officer. The Assessing

Officer submitted the Remand Report vide his letter dated 08/04/2013 which reads

as follows:

“Kindly refer to the above. The Remand Report called for in the case of the above assessee is submitted herewith.

The assessee is a partnership firm engaged in the business of sale of lottery tickets. The assessment originally completed u/s. 143(3) dated 29/12/2008 was revised u/s. 263 of the I.T. Act by the order of the CIT dated 9-03-2011. The revised assessment was completed on 11-11-2011 against which the instant appeal has been filed. Para wise remarks on the argument notes filed by the assessee are submitted below:

Para I & II. The assessee challenges the order of the Assessing Officer dated 11-11-2011 stating that he had over stepped his brief bestowed on him by the order of the CIT u/s. 263 of the Act. According to the assessee the Assessing Officer had been directed to verify only the following two points.

a. To verify the receipts and payments of agents prize.

b. To tax the income from winnings from unsold lottery tickets returned by the assessee under business income u/s. 115JB in accordance with the order of the High Court of Kerala. 8

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But, according to the assessee, the Assessing Officer had made a full scale re-assessment making huge additions on several points not touched upon in the order of the CIT u/s. 263.

A perusal of the order of the CIT u/s. 263 shows that though the direction was to redo the assessment, in the concluding part the CIT observes as under: “I, therefore, remit the case back to the Assessing Officer with a direction to redo the assessment considering the above observations and after giving the assessee adequate opportunity of the being heard”

It is thus seen that the direction to the Assessing Officer was to consider the two points mentioned above. It would therefore, appear that the assessee’s explanation is correct. However, the CIT(A) may kindly consider the issue on merits.

the Assessing Officer in the revised Assessment Order as follows:

Para IV. a. Para 4 of the Assessment Order

According to the assessee the retails sales per day @ Rs. 8,000/- estimated by the Assessing Officer was without any basis. Further, there was no necessity of estimating the gross profit when the actual books of accounts supported by relevant documents were produced before him. From the Assessment Order it is noticed that the said daily sales of Rs. 8,000/- was estimated without mentioning any particular method. The working of the Gross profit also appeared to be on an estimate basis. Though it was stated that on comparison with similar cases gross profit declared by the assesses was low, there was no mention of the names of cases compared with. In the circumstances, the assessee's contention appears to be correct.

b. Difference in Creditors balance

In the Assessment Order the AO had made an addition of Rs. 28,68,792/- being the difference in the creditors' balance in the case of Sree Balaji Agencies and Rs. 51,26,296/- in the case of M/s. S.G. Distributors. According to the assesses the amount payable to the creditor as per the books of accounts of the assessee is less than the amount shown in the creditors' books of accounts. As such there was absolutely no case for making an addition. 9

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Similarly, in the case of M/s. S.G. Distributors, the assesses claims that the books of accounts and documents running into several thousand pages were produced before the AO who did not consider these materials and passed the Assessment Order holding that there was no outstanding liability towards this creditor and added the entire balance of Rs 51,26,296/- treating it as the assessee's own income. While the addition of Rs.25,65,792/- appears to be incorrect the assessee's charge that the details furnished were not considered by the AO who had made the addition of Rs. 51,26,296/- cannot be accepted in the absence of evidence.

c. Para 10 & 11 of the Assessment Order

These Paras deals with Winnings from Lotteries of prizes of less than Rs. 5,000/- where tax need not be deducted at source. The AO had made an addition of Rs. 6,70,59,121/- representing prizes won where tax need not be deducted at source. The main grouse of the assesses was that the information gathered by the AO was not put to the assessee for clarification and the AO had made a one sided addition. The assessee has given a comprehensive explanation as to the nature of such prizes. The assessee's explanation appears to be acceptable.

d. In the P & L Account the assessee has shown “prize winnings in unsold tickets” with TDS of Rs.38,98,310/-. According to the Assessing Officer the assessee has not given the details of prize winning tickets and also no clarification as to whether prize winning amount relates to Kerala State Lotteries. On the basis of the details gathered from Lottery Department the Assessing Officer made an addition of Rs.55,88,795/- u/s. 115BB of the Act. Here also the assessee complains that the information gathered by the Assessing Officer was not disclosed to the assessee nor was any clarification sought. The assessee also states that the identity of the officials giving the information was not revealed to the assessee nor was an opportunity given for cross examination. The assessee’s claim appears to be correct.

e. Depreciation on UPS

The depreciation claimed by the assessee @ 80% was restricted to 10% by the AO. The explanation given by the assessee does not seem acceptable.

f. Agents Prize on tickets

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In the P & L Account the assessee had credited agents prize on super and special tickets at Rs.28,75,287/- in respect of sale of tickets other than Kerala Lotteries which according to the assessee was the only point the AO was authorized to review. The assessee submitted that the AO had received information from behind the back of the assessee which was not put before the assessee. According to the Ld. AR, the sum of Rs. 28,75,207/- was the net difference between total credits and total debits in the "Agency prize, super and special ticket account" which was transferred to the P & L Account. The AO however, did not accept the assessee's explanation. Instead verification was made with lottery department which showed that the assessee had received Rs. 6,85,47,229/-as Agents Prize, Commission discount, Seller's bonus etc. The assessed had opposed the findings of the AO again submitting that no opportunity was given to the assessee before making the addition.

The main grievance of the assessee was that no opportunity was given to the assessee on several additions made by she AO in the assessment Order. Besides, as mentioned in Para 1, the AO was only authorized to look into two points mentioned in the order u/s 263 of the Act. It was also submitted that many issues raised by Ihe assessee could have been only looked into at time of assessment proceedings. It is further submitted that this remand report has been prepared after discussions with the assessee's representative.

accepted that the Assessing Officer passing the order u/s. 143(3) r.w.s. 263,

exceeded his jurisdiction and on merit also, the Assessing Officer had accepted after

verification, that various additions made by the then Assessing Officer were not

warranted. Thus, he deleted all the additions made in the assessment order passed

u/s. 143(3) of the Act.

this issue, the CIT(A) solely gave his conclusions on the basis of the remand report 11

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of the Assessing Officer. The remand report of the Assessing Officer is not the basis

for holding that the addition cannot be sustained. The CIT(A) ought to have

decided the issue on merits instead of solely placing reliance on the remand report

of the Assessing Officer. Section 251 deals with the powers of the Commissioner of

Appeals which reads as follows:

" 251. Powers of the Appellate Assistant Commissioner or, as the case may be, the Deputy Commissioner (Appeals).--(1) In disposing of an appeal, the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) shall have the following powers--

(a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; or he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) and after making such further inquiry as may be necessary, and the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;

(b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty;

(c) in any other case, he may pass such orders in the appeal as he thinks fit.

(2) The Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction.

Explanation.--In disposing of an appeal, the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) by the appellant. "

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9.1 A reading of the above provision shows that the powers of the Commissioner

extend not only to the subject matter of the appeal against the assessment, that in

a given case, it is open to the Appellate Authority to even enhance the assessment.

Thus, apart from confirming an assessment or granting relief to the assessee or

cancelling the assessment, the first appellate authority has the power of an

Assessing Officer to enhance the assessment which is under appeal before him. The

Commissioner has the jurisdiction to examine all matters covered by the assessment

order and correct the assessment in respect of all such matters even to the

prejudice of the assessee and remand the case to the Assessing Officer to inquire

into matters which were not the subject matter of appeal - vide [1958] 33 ITR 182

(Commissioner of Income-tax v. McMillan and Co.). The only restriction on the

power while enhancement is that, the assessee must be given a reasonable

opportunity of showing cause as against such assessment or reducing the amount

of refund. Explanation appended to Section 251 is a further addition to the power

given to the Commissioner as specified under sub section (1). A reading of the

above-said Explanation shows that the authority of the Commissioner of Income Tax

(Appeals) travels to any matter which may arise out of the proceedings, which is

appealed against, notwithstanding the fact that such matter was not raised by an

assessee before the Commissioner. The sum and substance is that when the entire

assessment is before the Commissioner, the jurisdiction of the Commissioner is not

restricted either by the grounds raised or limited by the assessment made and the

authority of the Commissioner of Income Tax (Appeals) is co-terminus with that of

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the Assessing Officer to enhance the assessment too. Barring this, the Act does not

contemplate a withdrawal of the appeal filed by an assessee.

9.2 In the decision reported in [1967] 66 ITR 443 (Commissioner of Income-tax v.

Rai Bahadur Hardutroy Motilal Chamaria), the Apex Court pointed out that the right

of appeal under Section 31 under the 1922 Act, to which Section 25 of the 1961 Act

is in pari materia, is given to the assessee alone as against an order of assessment.

When the assessee does not choose to file an appeal, as far as the assessee is

concerned, the order becomes final and the Revenue has the power of revisional

assessment under Section 263 or 147, as the case may be. The Apex Court

observed that the Appellate Assistant Commissioner is not an ordinary Court of

appeal. "It is impossible to talk of a court of appeal when only one party to the

original decision is entitled to appeal and not the other party..." In view of this

peculiar situation, on the width of power of the Appellate Commissioner, the Apex

Court pointed out:

" It is also well-established that an assessee having once filed an appeal cannot withdraw it. In other words, the Assessee having filed an appeal and brought the machinery of the Act into working, cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appeal at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if he finds that there has been an under- assessment, he can enhance the assessment (see Commissioner of Income- tax, Punjab v. Nawab Shah Nawaz Khan ([1938] 6 ITR 370). "

In the context of the above-said decision of the Apex Court, the decision reported in [1963] 50 ITR 578 (Jagmohandas Gokaldas v. Commissioner of Wealth-tax) needs to be seen.

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9.3. Aggrieved on the valuation of the net wealth, the assessee in the said decision

filed appeals before the Appellate Assistant Commissioner of Wealth Tax, who

rejected the appeals. Against this, the assessee went on appeal before the Income

Tax Appellate Tribunal. The Tribunal pointed out that under Section 24 Sub Section

(6) of the Wealth Tax Act, the assessee can require the Tribunal to refer the

question of the disputed value to the arbitration of two valuers. The assessee was

called upon to indicate its intention to avail of this benefit. The assessee wrote a

letter seeking permission of the Tribunal to withdraw the appeal. The Tribunal

passed an order granting permission to withdraw the appeal. Thereafterwards, the

assessee preferred two revision petitions before the Commissioner of Wealth Tax

under Section 25(1) of the Wealth Tax Act, seeking revision of the order passed by

the Appellate Assistant Commissioner and contended that the valuation of the

shares adopted by the Wealth Tax Officer was on a wrong basis.

9.4 The Commissioner of Wealth Tax (Revision), however, rejected the petition

summarily on the ground that the order sought for revision was a subject matter of

appeal before the Tribunal; hence, he had no jurisdiction to deal with the same. On

the revision by the assessee, the Bombay High Court held that the Commissioner

was not justified in dismissing the revision application filed on the ground that the

orders of the Wealth Tax Officer and the Appellate Authority were a subject matter

of appeal before the Tribunal. In considering the withdrawal of the appeal before

the Tribunal, the Bombay High Court held that in a Tax Appeal, the assessee could

not, as a matter of right, withdraw the appeal; however there was nothing illegal in

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so doing with the permission of the Appellate Court. The Bombay High Court

pointed out that as against an order of assessment, an assessee could file an appeal

before the Appellate Assistant Commissioner and an assessee could test the validity

of the Assistant Appellate Commissioner's order at the hands of the appellate

authority, namely, the Tribunal, or give the validity of the order of assessment or

that of the Appellate Assistant Commissioner decided at the hands of the

Commissioner. In the background of the provision, it held that it is difficult to say

that mere filing of a competent appeal without carrying the matter to a final

decision would amount to a full exercise of that right. However, it is open to the

assessee to waive the right of appeal before the expiry of the period of limitation

and seek a revisional remedy. The Bombay High Court held that when the

legislature permits the right of an assessee to waive a right of appeal prior to the

period of limitation, it can reasonably be assumed that the legislature did not intend

to prohibit the assessee from waiving his right of appeal when an appeal had been

filed by the assessee, unless it can genuinely be said that in no case, if the appeal

had been filed, the assessee could withdraw an appeal. The Bombay High Court

held that if that be the true legal position, it would necessarily follow that once a

competent appeal had been filed, it is not open to an assessee to waive a right of

appeal.

9.5 In considering this issue, the Bombay High Court considered the decision

reported in [1938] 6 ITR 370 (Commissioner of Income-tax v. Nawab Shah Nawaz

Khan), a decision considered by the Apex Court in the decision reported in [1967]

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66 ITR 443 (Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal

Chamaria) and pointed out that in the decision reported in [1938] 6 ITR 370

(Commissioner of Income-tax v. Nawab Shah Nawaz Khan) the assessee sought to

withdraw the appeal after the appellate authority issued a notice of enhancement of

assessment. On a consideration of the decision reported in [1938] 6 ITR 370

(Commissioner of Income-tax v. Nawab Shah Nawaz Khan), the Bombay High Court

viewed that the ratio deductable from the decision is that, after the filing of an

appeal, the tax payer cannot, at his option or at his discretion, withdraw the appeal

to the prejudice of the revenue.

9.6 On the facts of the case, the High Court held that the Chartered Accountant

wrote a letter to the Registrar of the Tribunal, requesting him to obtain permission

from the Tribunal to withdraw the appeal and on consideration of the application,

the Tribunal granted the assessee the permission to withdraw the appeal. In the

light of the above-said facts, the High Court held that the Commissioner of Wealth

Tax was not justified in dismissing the Revision Application in limine.

9.7 As far as the present case is concerned, the assessee has challenged the merit

of the addition made by the Assessing Officer. To adjudicate this issue, the CIT(A)

has to go into the merit of each addition made by the Assessing Officer, as all the

powers enumerated u/s. 251 is available to the appellate authority to decide the

issue before him. The CIT(A) has also the power to enhance the assessment which

was not specifically considered by the Assessing Officer. It is a well settled principle

of law that tax appeal before the CIT(A) is only a continuation of assessment

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proceedings to arrive at the right income for determining the correct demand to be

made in accordance with law. Once the machinery of tax appeal is set in motion,

there is no stopping of such machinery on any account for the reason that once the

appellate authority assumes jurisdiction , no other authority including the revisional

authority could touch the assessment. . In the present case, the CIT(A) solely

relied on the remand report submitted by the Assessing Officer in a cryptic manner

without deciding each ground raised by the assessee independently before deleting

the addition which is inappropriate. Accordingly, we remit the entire issue in

dispute to the file of the CIT(A) to decide the issue afresh. He may call for the

remand report once again from the Assessing Officer. In other words, if the

assessee files any further evidence, the same shall be confronted to the Assessing

Officer before taking final decision by the CIT(A). This ground of appeal of the

Revenue is partly allowed or statistical purposes.

purposes. Order pronounced in the open court on 10th December, 2019.

sd/- sd/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Place: Kochi Dated: 10th December, 2019 GJ Copy to: 1. M/s. Manjoo & Co., C/o Muraleedharan, ‘MANJOO’, Near Poonkavu Temple, Kadambur, Edakkad P.O., Kannur-670 663. 18

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(ASSISTANT REGISTRAR) I.T.A.T., Cochin