COMMISSIONER OF INCOME TAX vs. ROHIT MILLS LIMITED.
What did the High Court hold?
On the first issue, the High Court held that the Tribunal was correct in allowing the deduction of Rs. 12,605/- as bank guarantee commission as revenue expenditure. The Court noted that this issue is settled by the Supreme Court decisions in Additional Commissioner of Income Tax Vs. Akkamamba Textiles Ltd. and CIT Vs. Sivakami Mills Ltd., which held that guarantee commission paid to a bank is revenue expenditure and an allowable deduction. Therefore, Question No. 1 was answered in the affirmative in favour of the assessee. On the second issue, the High Court held that the Tribunal committed an error in deleting the addition of Rs. 5,43,500/-. The Court reasoned that the assessment was not complete when a draft order under Section 144B was pending, and the IAC had the power to invoke Section 144A to direct investigations. The Court relied on various High Court decisions (Calcutta, Kerala, Karnataka) which held that the IAC has a free hand under Section 144A and can direct enquiries even while Section 144B proceedings are ongoing, as the assessment is considered pending until completion. The Court clarified that it was not deciding the merits of the addition itself, as the Tribunal had not done so. Question No. 2 was answered in the negative, in favour of the Revenue.
What were the facts?
The Revenue has referred two questions of law to the High Court concerning the assessment year 1976-77 for assessee Rohit Mills Limited. The first question pertains to the allowability of Rs. 12,605/- as bank guarantee commission. The Income Tax Officer (ITO) disallowed this as capital expenditure, while the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal (Tribunal) allowed it as revenue expenditure. The second question concerns the deletion of an addition of Rs. 5,43,500/- by the Tribunal. This addition was made by the ITO based on enquiries directed by the Inspecting Assistant Commissioner (IAC) under Section 144A, concerning sales to associated companies. The Tribunal deleted this addition, holding that the IAC could not make new additions in a draft approval under Section 144B.
What were the issues?
1. Whether, on the facts and in circumstances of the case, the Tribunal was right in law in allowing the claim of the assessee for deduction of Rs. 12,605/- being the bank guarantee commission as a revenue expenditure, under Section 37(1) of the Income Tax Act, 1961? The Revenue contended that the guarantee was for the purchase of a capital asset, making the expenditure capital in nature. The Assessee argued, and the Tribunal held, that it was revenue expenditure. 2. Whether, on the facts and in circumstances of the case, the Tribunal was right in law in deleting the addition of Rs. 5,43,500/- from the assessment of the assessee on the ground that the Inspecting Assistant Commissioner of Income Tax could not in a draft approval under Section 144B make any new addition to the approved draft assessment order? The Assessee argued that the IAC's directions under Section 144A were invalid as proceedings were pending under Section 144B. The Revenue contended that the IAC had the power to direct investigations under Section 144A even when a draft order under Section 144B was being processed, as the assessment was not complete.
Which sections of the Income-tax Act were involved?
Section 256,Section 37,Section 144B,Section 144A,Section 143(3),Section 153,Section 260
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
basis of the draft order.
(4) If any objections are received, the Income-tax Officer shall forward the draft order together with the objections to the Inspecting Assistant Commissioner and the Inspecting Assistant Commissioner shall, after considering the draft order and the objections and after going through (wherever necessary) the records relating to the draft order, issue, in respect of the matters covered by the objections, such directions as he thinks fit for the guidance of the Income-tax Officer to enable him to complete the assessment:
Provided that no directions which are prejudicial to the assessee shall be issued under this sub-section before an opportunity is given to the assessee to be heard.
(5) Every direction issued by the Inspecting Assistant Commissioner under sub-section (4) shall be binding on the Income-tax Officer.
(6) For the purposes of sub-section (1), the Board may, having regard to the proper and efficient management of the work of assessment, by order, fix, from time to time, such amount as it deems fit:
Provided that different amounts may be fixed for different areas:
Provided further that the amount fixed under this sub-section shall, in no case, be less than twenty-five thousand rupees.
(7) Nothing in this section shall apply to a case where an Inspecting Assistant Commissioner exercises the powers or performs the functions of an Income-tax Officer in pursuance of an order made under Section 125 or Section 125A."
It will be seen from the provisions of Section 144A(1) of the Act that the IAC can exercise his powers either on his own motion or on an application being made by an assessee or on a reference being made by the ITO in respect of proceedings in which an assessment is pending. He is authorised to call for and examine the record of any such proceedings and issue directions for the guidance of the ITO to complete the assessments. He can issue such directions whenever he considers it necessary or expedient so to do having regard to the nature of the case or the amount involved or for any other reason. If the directions are prejudicial to the assessee, he is required to give an opportunity of being heard to the assessee under the proviso to sub-section (1) of Section 144A of the Act. However, if the direction is as to the lines on which an investigation connected with the assessment should be made, such direction will be deemed not to be prejudicial to the assessee. Section 144A of the Act is a provision of general application and it gives wide powers to IAC to issue binding directions, in the matters which are pending for assessment, for the guidance of the ITO to enable him to complete the assessment. This would cover all the stages of pendency till the making of the final assessment order. They would therefore, include even the stage of making of the draft order and thereafter until the final order is made. Where a draft order is prepared in cases where the ITO proposes a variation in the income/loss returned which is prejudicial to the assessee, of an amount exceeding the amount fixed by the Board under sub-section (6) of Section 144B of the Act and if no objections are received against the draft order, the assessment would still be pending before him and directions could be issued by the IAC under Section 144A(1) before any final order is made by the ITO, even in such cases. Even after he makes a reference and the draft order and the objections are before the IAC, the assessment is yet to be completed by the ITO, who awaits the directions of the IAC under Section 144B(4) of the Act. Therefore, while considering the matter under Section 144B of the Act, if the IAC finds it necessary to issue directions regarding matters not covered by the objections of the assessee and therefore not by the provisions of Section 144B(4) of the Act, then he can still issue such directions under Section 144A(1) of the Act, which, if related to the lines on which investigation should be made, will be deemed to be not prejudicial to the assessee and on following such directions, if the ITO is in a position to complete the assessment, he may do so. However, if again a situation arises after implementing the directions issued under Section 144A(1) of the Act regarding matters not covered by the objections against the draft order previously forwarded, which require a draft order to be made in view of the nature of variation falling in Section 144B(1), he has to prepare a draft order once again and forward the same to the assessee and on receipt of his objections, to forward such fresh draft order with the objections received against it again to the IAC under Section 144B(4) of the Act. It is obvious that in respect of the matters already covered under the objections of the assessee against a draft order, there
is no need for the IAC to issue directions under Section 144A(1), since he has, in that event, to proceed to issue directions under Section 144B(4) for enabling the ITO to complete the assessment.
The IAC who may not have had any opportunity to see the proceedings before the draft order and objections are forwarded to him under Section 144B(4) of the Act, can come across flaws in the matter which are not covered by the objections because the ITO may have omitted to make certain investigation or neglected important aspects of the matter. It cannot be said that the inspecting power of the IAC which he could have exercised under Section 144A(1) of the Act by issuing suitable directions in that regard till the eve of the preparation of the proposed order of assessment by the ITO, is suddenly taken away when it could be exercised only when the flaw necessitating the directions under Section144A(1) of the Act is noticed or as a matter of fact, could be noticed only when the matter is being considered under Section 144B(4) of the Act. Moreover, the same IAC, if he was vested with the powers of the ITO as contemplated by Section 144B(7) of the Act, read with Section 125(3) thereof, could have avoided such flaw before making such final order himself. It could not be the legislative intent to deny him the authority of issuing directions to do something in exercise of his inspecting powers which he could have himself done if invested with the power of the ITO while deciding the cases falling beyond the pecuniary limits contemplated by sub-section (6) of Section 144B of the Act.
Though the function of the ITO practically comes to an end when he prepares a draft order and refers it with the assessee's objections to the IAC under Section 144B(4) and the assessee cannot revise his returns, the held that if the assessee's contention that even after making a reference under Section 144B, the assessee is entitled to file a revised return is accepted, then it may mean re-doing the entire exercise over again and the reference already made may be rendered unnecessary, which situation is not provided for in the Act. It is obvious that when the ITO prepares a draft order, he tentatively, i.e subject to the further procedure required to be followed and the directions of the IAC, does work out the total income of the tax payable thereon and once that is known by the assessee on receipt of the draft order, to allow the assessee to revise the return which can be done only if he discovers any omission or wrong statement therein, would amount to giving him an opportunity to wriggle out from the consequences of filing of a false return, when the omission or wrong statement may have already been detected by the ITO in his draft order. That could never be the intendment of the law and that is why there could be no question of entertaining a revised return once a draft assessment order is made and the matter is referred alongwith the assessee's objections to the IAC under Section 144B(4) of the Act, as held by the Hon'ble Supreme Court. This ratio however, cannot be extended to denying the IAC of his power to issue directions to the ITO under the provisions of Section 144A(1) when a reference is made to him under Section 144B of the Act. In fact, the IAC comes into picture for exercise of his authority to issue directions for the guidance of the ITO to complete the assessment only when he receives the reference and he can either confine himself to the objections raised by the assessee or, if need be, issue directions under Section 144A(1) as regards the matters not falling within the scope of the objections, but which he may find to be important enough to merit investigation and consideration for completing the assessment i.e. for assessing the total income of the assessee and the sum payable thereon. The expression "to enable him to complete the assessment", clearly refers to the making of the final order of assessment, which is required to be made before the expiry of the time limit provided by Section 153 of the Act, which provides for "time limit for completion of assessments and reassessments". Once completion of assessment means making of a final order of assessment as is clear from Section 153 of the Act, the powers that the IAC can exercise under Section 144A(1) would extend till the stage of making of the final order of assessment, which means he can issue directions till the final assessment order is made. This course alone would give the IAC the effective powers of issuing the directions that are intended to be conferred on him by Section 144A(1) of the Act.
The provisions of Section 144(3) contemplate definitive assessment, and a tentative assessment or an assessment subject to revision is not an assessment at all. An assessment is not a piece of paper, it is an official act or operation. It is the ITO's ascertainment on consideration of all the relevant circumstances including some times his own opinion, of the amount of tax chargeable to a given tax-payer. When he has completed his ascertainment of the amount and determination of tax, he sends the notice of demand. The act of assessment is complete only when he makes the final order. Therefore, the powers under Section 144A (1) could be exercised till such final order is made or a draft order is prepared by making a tentative assessment by following the directions that may have been given by the IAC.
While it is not necessary for the ITO to seek guidance under Section 144A(1) of the Act and he can complete the assessment in matters which are within his pecuniary limits set by the Board under Section 144B (6) of the Act, he has to defer completion of the assessment until he receives directions in the matters, which exceed those pecuniary limits where objections are filed against the draft order and forwarded alongwith it to the IAC. The wide powers of the IAC to issue directions under Section 144A(1) of the Act would not be eclipsed merely on the making of a reference in which the IAC's power to issue directions is rather limited to the matters covered by the objections. When having regard to the nature of the case or amount involved or for any other valid reason he finds that in respect of the matters not covered by the objections, the record warrants the other matters to be investigated, he is not precluded from resorting to the powers under Section 144A(1) notwithstanding the reference made to him under Section 144B(4) of the Act. The crux of the matter is that in either case the assessment not being yet complete, the reference under Section 144B(4) does not immunise the assessee from further investigation by resort to the provisions of Section 144A(1) of the Act.
In this view of the matter, the decision of the Supreme Court in Panchmahal Steel Ltd. (supra) cannot assist the assessee.
As noted above, the Tribunal proceeded on the footing that the IAC had for the first time come up with the addition of Rs. 5,43,500 in respect of the transactions which were entered into by the assessee company in favour of the aforesaid three companies. The Tribunal did not go in to the merits of the matter and specifically stated that it was not up-holding the order of the CIT (Appeals), which was in favour of the assessee for the reasons which he had given, but it was upholding that order on the footing that the IAC could not have come up with such additions in his directions given on the draft assessment order. From the cryptic reasoning of the Tribunal on this count, it is clear that the Tribunal totally lost sight of the fact that there was earlier a draft order forwarded by the ITO under Section 144B(4) of the Act on 16.2.1979 and thereafter, directions were issued under Section 144A(1) of the Act by the IAC to the ITO, which fact was clearly mentioned in the final order of the ITO in paragraph 14.1 of his order. Those were the directions which only required the ITO to make enquiries in respect of the sales carried out by the Engineering Division of the assessee to the three private limited companies. It is clear from the nature of directions that these were intended only to provide lines on which further investigation connected with the assessment was to be made by the ITO. The explanation to Section 144A(1) clearly lays down that no direction as to the lines on which the investigation connected with the assessment should be made, shall be deemed to be a direction prejudicial to the assessee. The expression "direction as to the lines on which an investigation connected with the assessment should be made" is of a provisions of Section 144A, 144B, 153 and sub-section (1)(iv) to Section 153 of the Act, that the time for 5,43,500/- from the assessment of the assessee on the ground that the IAC could not have issued directions in that regard in the draft approval given under Section 144B of the Act. The question No.2 is accordingly answered in the negative in favour of the Revenue and against the assessee. We make it clear that since the Tribunal did not go in to the merits of the addition, we are not called upon to decide that aspect in context of this question. The reference stands disposed of accordingly with no order as to costs.
The Registry is directed to forward copy of this judgement to the Tribunal as contemplated by the provisions of Section 260(1) of the said Act.
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*/Mohandas
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