THE PRINCIPAL COMMISSIONER OF INCOME TAX vs. KALPESHKUMAR B VERMA
What did the High Court hold?
The High Court held that none of the two questions proposed by the Revenue constituted substantial questions of law. The Tribunal had recorded a specific finding that no incriminating material was recovered during the search and that the Assessing Officer (AO) had made adequate inquiries. The Court agreed with the Tribunal's conclusion that the assessment order could not be considered erroneous and prejudicial to the interests of the revenue, thus not warranting revision under Section 263. The Court noted that the AO had access to all the assessee's records during the assessment proceedings and had framed the assessment after perusing them. Therefore, the revision by the PCIT was not justified. The appeal filed by the Revenue was dismissed.
What were the facts?
The Revenue has filed this appeal against the order of the Income Tax Appellate Tribunal (ITAT) for Assessment Year (AY) 2009-10. The assessee had filed his return declaring an income of Rs. 7,01,555, which was assessed at Rs. 8,30,030 under Section 143(3). Subsequently, a search under Section 132 led to a notice under Section 153A. The assessment under Section 153A read with Section 143(3) was finalized at Rs. 8,30,030. The Principal Commissioner of Income Tax (PCIT) invoked revisional powers under Section 263, holding the assessment order to be erroneous and prejudicial to the revenue. The PCIT noted that the assessee claimed interest expenditure of Rs. 57,37,042 against interest income of Rs. 42,11,011, resulting in a loss under 'Income from Other Sources'. The PCIT believed the Assessing Officer (AO) made inadequate inquiries, accepting ledger accounts without proper verification of the nexus between borrowed funds and their utilization for investment in shares/securities.
What were the issues?
1. Whether the Appellate Tribunal erred in law and facts in reversing the order passed under Section 263 of the Income Tax Act, 1961, by holding that the assessment order cannot be branded as erroneous as there was an inquiry regarding the claims made, and mere inadequacy cannot be a ground for action under Section 263? 2. Whether the Appellate Tribunal erred in law and facts in not appreciating that the interest expenditure of Rs. 57,37,042 was not incurred wholly and exclusively for earning interest income but was utilized for investment in shares/securities? Assessee's contentions (as per Tribunal's order): The assessee contended that the AO had made adequate inquiries and that no incriminating material was found during the search. The assessee relied on CIT vs. Amit Corporation (2012) and Pr. CIT vs. Saumya Construction Pvt. Ltd. (2016) for the proposition that an assessment order cannot be reopened under Section 263 for further inquiries if the AO had access to all records and made an assessment, and that in Section 153A assessments, if no incriminating material is found, no addition can be made based on post-search material. Revenue's contentions (as per proposed questions): The Revenue argued that the Tribunal erred in reversing the PCIT's order, asserting that the assessment was erroneous due to inadequate inquiries by the AO. The Revenue also argued that the interest expenditure was not wholly and exclusively for earning interest income but was used for investments in shares/securities.
Which sections of the Income-tax Act were involved?
Section 260A,Section 263,Section 143(3),Section 132,Section 153A
AI-generated summary — verify with the full judgment below
C/TAXAP/761/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 761 of 2019 ========================================================== THE PRINCIPAL COMMISSIONER OF INCOME TAX Versus KALPESHKUMAR B VERMA ========================================================== Appearance: MRS MAUNA M BHATT(174) for the Appellant(s) No. 1 for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 10/02/2020
ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. This tax appeal under Section260A of the Income Tax Act, 1961 [for short 'The Act, 1961'] is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal, Ahmedabad 'C' Bench, Ahmedabad dated 18th February, 2019 in the ITA No.1244/AHD/2018 for the A.Y. 200910. 2. The Revenue has proposed the following two questions of law for the consideration of this Court: [A] Whether the Appellate Tribunal has erred in law and on facts in reversing the order passed under Section263 of the Act by holding that the assessment order cannot be branded as erroneous as there has been enquiry with regard to claims made and mere inadequacy cannot be ground for taking action under Section263 of the Act? [B] Whether the Appellate Tribunal has erred in law and on facts in not appreciating the fact that interest expenditure amounting to Page 1 of 6
C/TAXAP/761/2019 ORDER Rs.57,37,042/ was not incurred by the assessee wholly and exclusively for the purpose of earning interest income but was in fact utilized for making investment in shares/securities? 3. It appears from the materials on record that the assessee had filed his return of income for the A.Y.20092010 declaring the total income at Rs.7,01,555/. The return of income was filed on 24th September, 2009. The assessment was finalized on 21st September, 2011 under Section 143(3) of the Act determining the assessed income at Rs.8,30,030/. It appears that thereafter, a search under Section132 of the Act was undertaken on 26th April, 2013 in connection with the Anand Group of Builders. The case of the assessee was also included. The case was centralized and thereafter, a notice under Section153A was issued on 21st October, 2013. In the meantime, the details of the revenue audit objection were communicated by the then Assessing Officer to the Assessing Officer of the Central Circle on 31st July, 2014. The assessment was finalized and the order under Section153A read with Section 143(3) of the Act was passed dated 29th February, 2016 determining the assessed income at Rs.8,30,030/. 4. The CIT thought fit to invoke its revisional powers under Section 263 of the Act. The CIT took notice of the fact that the assessee had shown to have received Rs.42,11,011/ as the interest income in the year under consideration. The CIT also took note of the fact that the assessee had claimed interest expenditure of Rs.57,37,042/ resulting into the declaration of loss of Rs.15,26,031/ under the head “Income from Other Sources”. The CIT also took note of the fact that the borrowed funds had been utilized for making the investment in shares/securities. In such circumstances, the CIT in its order observed as under: “5. The reply of the assessee has been carefully considered. Assessment records of the A.O. have also been perused. The arguments Page 2 of 6
C/TAXAP/761/2019 ORDER put forth by the assessee are not found tenable. Further, the judicial pronouncements relied upon by the assessee are also not squarely applicable in the instance case. On verification of records, it is noticed that the claim of the assessee has been allowed by the A.O. without verifying its allowability as per Incometax Act, thereby the AO has made inadequate enquiries before allowing the above claim of the assessee. The assessing officer, upon the receipt of the return of income u/s.153A of the Act, gave an opportunity to the assessee. Thereafter, the assessee was required to give details of interest etc. In response thereto, the only details/ evidences filed by the assessee are merely copy of his ledger accounts. The assessing officer, without carrying out any exercise of acting/ verification on the ledgers, has concluded the assessment by determining the amounts as given by the assessee. The phrase “prejudicial to the interests of the Revenue” should be understood in ordinary meaning; it is of wide import and it is not confined to laws of tax. Since while passing the order, the AO has just accepted what the assessee wanted him to accept without discussing the allowability or disallowance, the provisions of section 263 of the I.t. Act are found applicable to the assessee's case. The AO has not at all examined the eligibility of the assessee to claim deduction of this interest and has merely allowed that on the basis of, copy of ledger accounts only. The AO has not made any enquiry and has accepted the facts on its face value. This is to be termed as a case of only half hearted enquiry as no definite conclusion can be arrived at merely on the filing of ledgers before the AO. Accordingly, it is held that there has been a complete nonapplication of mind by the AO while examining the expenditure. Thus, the view taken by the AO is primafacie incorrect and therefore, there is reason to hold that such an order is erroneous and prejudicial to the interest of revenue. 6. Further, during the course of assessment as well as proceedings u/s.263 of the Act, the assessee has also contended that the AO had no power u/s.153 r.w.s.143(3) of the Act to examine the issue of allowability of the expenditure on the ground that the assessment for the year under consideration had already abated on the date of search. And the assessment under consideration, being made u/s.153A in consequence of search, is required to be restricted to the documents/ incriminating material found in the course of search for assessing the undisclosed income. As per the assessee, the subject matter of revision u/s.263 of the Act does not fall within its preview. 6.2 In the case in hand, the AO has, upon receipt of the return in response to the notice u/s.153A of the Act, given an opportunity to the assessee and required him to give certain details and in response to which the assessee has filed merely copy of his ledger accounts. All that followed thereafter is the AO, without carrying out any exercise of acting/ verifying the accounts and admissibility of the accounts Page 3 of 6
C/TAXAP/761/2019 ORDER involved, has concluded the assessment by determining the amounts as given by the assessee in respect of these claims. 7. In the light of the above facts, the assessment order u/s.153A r.w.s.143(3) of the Incometax Act, 1961 for A.Y.200910 passed by the aO on 29.02.2016 is erroneous and prejudicial to the interests of the Revenue to this extent. Accordingly, the order is set aside and AO is directed to make assessment in this regard after concluding enquiry and verification of the facts of the case and after giving sufficient opportunity of being heard to the assessee before finalizing the set aside assessment order.” 5. The sum and substance of what has been conveyed in the order passed by the CIT is that there was no proper inquiry at the end of the Assessing Officer. 6. The assessee being dissatisfied with the order passed by the CIT preferred an appeal before the Tribunal and the Tribunal vide impugned order allowed the appeal and thereby, quashed and set aside the order passed by the Commissioner. The Tribunal while allowing the appeal preferred by the assessee observed thus: “2. On verification of the case records of the assessee for A.Y.2009 10, it is noticed that the assessee has shown to have received Rs.42,11,011/ as interest income in the year under consideration. He has also claimed interest expenditure of Rs.57,37,042/ resulting into declaration of loss of Rs.15,26,031/ under the head “Income from Other Sources”. Further, perusal of records reveal that the borrowed funds have been utilized for making investment in shares/securities. Thus, the interest payment/expenditure has not been utilized wholly and exclusively for the purpose of earning interest income. On perusal of his reply dated 23.12.2015submitted on 29.12.2015 during course of assessment proceedings, it is noticed that the assessee has …. submitted the ledgers of interest received and interest payment, but not furnished the proof establishing the nexus between source of funds and its utilization. His submission made during assessment proceedings by simply: filing copy of ledger accounts has been accepted by the A.O. without conducting verification of nexus and without verifying their admissibility under the I.T. Act. Accordingly, the said interest expenditure has been allowed erroneously and is prejudicial to the interest of revenue. Page 4 of 6
C/TAXAP/761/2019 ORDER 3. Thus, impugned assessment for A.Y. 200910 passed on 29.02.2016 by the Assessing Officer i.e. DCIT, Central Circle3, Baroda u/s.153A r.w.s.143(3) of the Act order is erroneous and prejudicial to the interest of Revenue within meaning of section 263 of the Income Tax Act. 4. Now assessee has come before us with the grievance for order passed by the ld. Pr. CIT is wrong and already had adequate enquiry have been made by the Assessing Officer. 5. In this case, assessee has shown has to received Rs.42,11,011/ as interest income in the year under consideration, and has also claimed interest expenditure of Rs.57,37,042/ resulting into declaration of loss of Rs.15,26,031/ under the head “Income from Other Sources”. 6. We can see in this case, during search no incriminating material was found and ld. A.O. made adequate enquiry in this case. 7. In support of its contention, ld. A.R. cited an order in the matter of CIT Vs. Amit Corporation (2012) 81 CCH 0069 (Guj.) High Court wherein it is held that “during the course of framing of assessment, Assessing Officer had access to all records of assessee, after pursuing such record Assessing Officer framed assessment, such assessment could not have been reopened in exercise of revision power u/s.263 for making further inquiries.” 8. In this case, assessee cannot be branded as erroneous as there has been inquiry with regard to claims made and mere inadequacy cannot be ground for taking action u/s.263 of the Income Tax Act. 9. Ld. A.R. also cited a case of Pr. CIT Vs. Saumya Construction Pvt. Ltd. 81 taxmann.com 292 (Guj.) wherein has been held that assessment “u/s.153A, relation to material disclosed during search or requisition; if no incriminating material is found during search, no addition can be made on basis of material collected after search.” 7. Thus, the Tribunal while allowing the appeal preferred by the assessee relied upon two decisions of this Court; (i) CIT Vs. Amit Corporation, (2012) 81 CCH 0069 (Guj.) And (ii) Principal CIT Vs. Saumya Construction Pvt. Ltd., 81 taxmann.com 292 (Guj.). 8. Having heard the learned counsel appearing for the Revenue and Page 5 of 6
C/TAXAP/761/2019 ORDER having gone through the materials on record, we are of the view that none of the two questions as proposed by the Revenue could be termed as the substantial questions of law involved in this appeal. The Tribunal has recorded a specific finding that during the search, nothing incriminating was recovered and the Assessing Office made adequate inquiry in the case. It is not in dispute that during the course of framing of assessment, the Assessing Officer had access to all the records of the assessee and after perusal of such records ultimately the Assessing Officer framed the assessment. The Tribunal is right in its final conclusion that such assessment order could not have been taken into revision in exercise of revisional power under Section263 of the Act as assessment order cannot be said to be erroneous and prejudicial to the interests of the revenue. 9. We are convinced with the impugned order passed by the Tribunal. No interference is warranted. 10. In the result, this appeal fails and is hereby dismissed. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 6 of 6
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