IOT INFRASTRUCTURE and ENERGY SERVICES LTD vs. THE ASSISTANT COMMISSIONER OF INCOME-TAX and1 ORS
What did the High Court hold?
The High Court allowed the petition and set aside the notice for reopening. The Court found that for the Rs. 1.12 crores, the assessee had already disallowed the amount in its return, and the AO had accepted this in the order rejecting objections. Therefore, there was no basis for the AO to believe income had escaped assessment for this portion. Regarding the Rs. 29.23 lakhs, the Court noted the assessee had clearly stated in the Tax Audit Report that it was a write-down of slow/non-moving inventory, not capital expenditure. The AO mistakenly treated it as capital expenditure simply because it was mentioned in a section dealing with capital expenditure. Furthermore, the AO failed to address the assessee's contention that inventory write-downs are not capital in nature, a principle supported by Supreme Court judgments in Chainrup Sampatram and British Paints India Ltd. The Court also noted the AO's reliance on amended Section 115JB provisions, which were not in force at the time of recording reasons, was invalid. The Court concluded that the reopening was not founded on tangible material and the AO acted outside his jurisdiction, citing CIT vs. Kelvinator of India Ltd.
What were the facts?
The Assessing Officer (AO) issued a notice under Section 148 on March 16, 2009, to reopen the assessment for Assessment Year 2004-05. The assessee had filed a return disclosing nil income under normal provisions and book profits of Rs. 23.35 crores under Section 115JB. An assessment order was passed under Section 143(3) on December 28, 2006. The AO's reason for reopening was a debit of Rs. 1,41,50,927 in the Profit & Loss account as a provision for diminution in the value of assets, which the AO considered a capital expenditure and thus income escaping assessment. The assessee objected, stating Rs. 1.12 crores of this amount was already disallowed in the return, and the remaining Rs. 29.23 lakhs related to a write-down of slow-moving inventory, not capital expenditure. The AO rejected the objections.
What were the issues?
1. Whether the Assessing Officer had valid reasons to believe that income had escaped assessment under Section 147, concerning a provision of Rs. 1.41 crores for diminution in the value of assets, for Assessment Year 2004-05? Assessee's arguments: - For the Rs. 1.12 crores portion, no income escaped assessment as it was already disallowed in the return and accepted by the AO. - A write-down of inventory cannot be considered capital in nature. - The AO merely reappraised existing material without tangible evidence of escapement. - The AO's prior acceptance of the assessee's treatment in an audit query precluded forming a belief of escapement. - The AO's reference to Section 115JB was incorrect as the relevant amendment was not in force when reasons were recorded. Revenue's arguments: - The provision was made as revenue expenditure, and the assessee could have reduced closing stock instead. - Reopening occurred within four years, allowing the AO to form a belief of escapement. - The AO had reason to reopen as the issue was not considered.
Which sections of the Income-tax Act were involved?
Section 147,Section 148,Section 143(3),Section 115JB,Section 44AB
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) : Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
The Assessing Officer has purported to exercise the power under Section 147 of the Income Tax Act, 1961, by issuing a notice under Section 148 on 16 March 2009. The Assessment Year in question is 200405. 3. The assessee filed a return of income on 29 October CNR No : HCBM020094432010 Uploaded on - 21/08/2020 2004, disclosing nil income under the normal provisions of the Act and book profits of Rs.23.35 crores under Section 115JB. An assessment order was passed under Section 143(3) on 28 December 2006. A notice was issued under Section 148 on 16 March 2009. The reasons and the basis on which the assessment is sought to be reopened were intimated to the assessee on 18 June 2009 and are as follows: “A perusal of P & L Account reveals that company had debited provision on account of diminution in the value of the assets amounting to Rs.1,41,50,927/. This was not a proper charge on the profit of the company as the amount represents the provision made for fall in the value of capital assets which was capital in nature and needs to be disallowed and added back to the income of the assessee company. In view of this, I have reason to believe that income of the assessee has escaped the assessment within the meaning of provisions of Sec.147 of the I.T. Act. Accordingly, notice u/s.148 is issued.”
The assessee submitted its objections on 18 March 2010. The Assessing Officer has passed an order on 22 March 2010 rejecting the objections. Uploaded on - 21/08/2020
In order to appreciate the basis on which the assessment is sought to be reopened, a reference to some of the salient aspects of the case would be in order. The assessee, in Schedule 18 to its balance sheet as of 31 March 2004 made a provision for diminution in the value of assets of Rs.1.41 crores under the head of operating and other expenses. In the computation of income, among the items disallowed by the assessee, was an expenditure in the amount of Rs.1.12 crores incurred during the construction period, which was a write down. In the Tax Audit Report under Section 44AB, the assessee disclosed in Item 17 amounts debited to the Profit and Loss Account. Sub paragraph (a) of Item 17 deals with expenditure of a capital nature. While furnishing a break up under this item, the assessee disclosed that an amount of Rs.1.12 crores was a write down in the value of assets. This was stated to exclude an amount of Rs.29.23 lakhs which, according to the assessee, was a “write down in the value of slow/non moving inventory valued at estimated realizable value being considered as not in the nature of capital expenditure”. Therefore, a plain reading of Item 17 of the Tax Audit Report shows that the assessee disclosed that an amount of Rs.29.23 lakhs was not in the nature of Uploaded on - 21/08/2020 capital expenditure and represented a write off on account of slow or nonmoving inventory which was valued at its estimated realizable value. The Assessing Officer has purported to reopen the assessment on the ground that the assessee had debited a provision amounting to Rs.1.41 crores on account of diminution in the value of assets. This, according to the Assessing Officer, is not a proper charge on profits as the amount represents a provision made for a fall in the value of capital assets, which is considered to be capital in nature. The assessee filed its objections on 18 March 2010 in which the attention of the Assessing Officer was drawn to the fact that in the statement of total income, under the head “Items disallowed”, the amount of Rs.1.12 crores had already been added back in the return of income. Hence, it was urged that there could be no reason to believe that income has escaped assessment in respect of the amount of Rs.1.12 crores because the assessee had disallowed the amount in the computation of income. As regards the balance of Rs.29.23 lakhs, the assessee noted that it relates to a write down in value on account of slow or nonmoving inventory estimated on the basis of realizable value which could not be regarded as being in the nature of capital expenditure. The Uploaded on - 21/08/2020 assessee relied on precedents to support its contention. The Assessing Officer dealt with the objections of the assessee in his order dated 22 March 2010 and accepted the factual position that the amount of Rs.1.12 crores out of Rs.1.41 crores had been disallowed by the assessee in the return of income. However, the balance of Rs.29.23 lakhs was treated by the Assessing Officer to be of a capital nature. At this stage, it appears from record that the objection of the assessee that a write down in the value of slow moving or nonmoving inventory could not be treated as of a capital nature was not dealt with in the order of the Assessing Officer.
In this back ground, Counsel appearing on behalf of the Assessee has urged five submissions for the consideration of the Court. Firstly, it has been submitted that with respect to the amount of Rs.1.12 crores, there could be no question of the Assessing Officer forming a reason to believe that income has escaped assessment, because the assessee had itself disallowed it in its computation which has been accepted in the order passed by the Assessing Officer on 22 March 2010. Secondly, on the balance of Uploaded on - 21/08/2020 Rs.29.23 lakhs, the submission is that a write down of inventory can never be regarded as being capital in nature. Thirdly, the Assessing Officer has only made a reappraisal of the material on record and there was no tangible material for him to come to the
conclusion that there is an escapement of income. Fourthly, the Officer having accepted in reply to an audit query that what the assessee had done was right, the Assessing Officer could have had no reason to believe that income had escaped assessment. Fifthly, the reference to the provisions of Section 115JB by the Assessing Officer while disposing of the objections of the assessee and in the affidavit in reply is incorrect. The amendment to Section 115JB was brought into force by Finance Act 2 of 2009 (with retrospective effect from 1 April 2001) and on the date on which the Assessing Officer recorded his reasons for coming to the conclusion that the income has escaped assessment, these provisions were not on the statute book. Consequently, the validity of the reasons recorded by the Assessing Officer cannot be determined with reference to the provisions as amended.
On the other hand, it has been urged on behalf of the Uploaded on - 21/08/2020 Revenue that the assessee had made a provision as revenue expenditure. The assessee could well have reduced the value of closing stock instead of making a provision. The reopening of the assessment has taken place within a period of four years of the end of the relevant Assessment Year and it is open to the Assessing Officer to come to the conclusion that income has escaped assessment. Moreover, the Assessing Officer having failed to consider the issue, a case for reopening had, it is urged, been made out.
While considering the rival submissions, it would be necessary to record that the only basis on which the assessment has been sought to be reopened is that the assessee had incorrectly made a provision on account of diminution in the value of assets amounting to Rs.1.41 crores by making a debit to the Profit and Loss Account. According to the Assessing Officer, this could not have been a charge on the profits of the Company since the amount represented a provision made for a fall in the value of capital assets. Now, as the admitted material before the Court would show, it is undisputed that of the amount of Rs.1.41 crores, an Uploaded on - 21/08/2020 amount of Rs.1.12 crores was reflected by the assessee in Item 17 of the Tax Audit Report as being a write down in the value of assets. The assessee had disallowed this amount in the computation of income. This has fairly been accepted by the Assessing Officer in his order dated 22 March 2010. That being the position, there is merit in the first submission which has been made on behalf of the assessee that there could have been no occasion for the Assessing Officer to form a reason to believe that this part of the income (Rs.1,12 crores) had escaped assessment. As regards the balance of Rs.29.23 lakhs, the assessee in Item 17(a) of the Tax Audit Report clearly stated that this was a write down in the value of slow/non moving inventory which was valued at its estimated realizable value and which was not in the nature of capital expenditure. The Assessing Officer has perhaps mistakenly proceeded on the basis that since this amount is shown in Item 17(a) of the Tax Audit Report which is entitled “Expenditure of a capital nature”, it was to be regarded as of a capital nature. Ex facie the Assessing Officer has missed the fact that the assessee had clearly stated that the amount of Rs.29.23 lakhs was not in the nature of capital expenditure. But more importantly, in its Uploaded on - 21/08/2020 objections dated 18 March 2010, the assessee clarified the position Supreme Court referred to the principle that “closing stock is to be valued at cost or market price whichever is the lower” and the Supreme Court held that this is “now generally accepted as an established rule of commercial practice and accountancy”. The Supreme Court once again considered it to be “a well recognized principle of commercial accounting to enter in the profit and loss account the value of stockintrade at the beginning and at the end of the accounting year at cost or market price, whichever is the lower”. The Assessing Officer did not deal with the submission of the assessee while disposing of the objections.
We are conscious of the circumstance that the reopening 1 (1953) 24 ITR 481 2 (1991) 188 ITR 44 Uploaded on - 21/08/2020 of the assessment has taken place in the present case within a period of four years of the end of the relevant Assessment Year. But, it is now a settled position of law that though, after 1 April 1989, the power to reopen an assessment is much wider than previously, the words “reason to believe” do not confer an arbitrary considered “not in the nature of capital expenditure”.
In the circumstances, there is merit in the submission 3 (2010) 320 ITR 561 (SC) Uploaded on - 21/08/2020 which has been made on behalf of the assessee that the reopening of the assessment is not founded on tangible material and that the Assessing Officer has acted outside the fold of his juri iction.
In the present case, it would also be necessary to note that the reasons of the Assessing Officer were recorded before the provisions of Section 115JB were amended by Finance Act No.2 of 2009 though with effect from 2001. As a result of the amendment, clause (i) has been inserted in explanation (1) to the Section which defines the meaning of the expression “book profits”. By the amendment, the amount or amounts set aside as provision for diminution in the value of the assets is to be added to the net profit as shown in the Profit and Loss Account for the relevant previous year, prepared under subsection (2). When the reasons were Uploaded on - 21/08/2020 context of Section 263, the principle that emerges is that the reopen the assessment for Assessment Year 200405. There shall be no order as to costs. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.) 5 Writ Petition 2514 of 2009 decided on 4 March 2010. Uploaded on - 21/08/2020 Powered by TCPDF (www.tcpdf.org)
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