M/S SURJEET AUTO AGENCY ,BHOPAL vs. PR CIT-2, BHOPAL

अपील�य अ�धकरण, इ�दौर �यायपीठ, इ�दौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE

BEFORE SHRI MANISH BORAD,ACCOUNTANT MEMBER AND MIS MADHUMITA ROY, JUDICIAL MEMBER

ITA No.189/Ind/2020 Assessment Year:2015-16 M/s Surjeet Auto Agency, Pr. CIT-2, 4-5, Lajpat Nagar, Raisen Bhopal बनाम/ Road, Apsara Cinema, Vs. Bhopal (Appellant) (Respondent ) P.A. No. AATFS 4110J Appellant by S/Shri Sumit Nema, Sr. Adv. & Gagan Tiwari, Piush Parasar Advs. Revenue by Shri S.B. Prasad, CIT-DR Date of Hearing: 13.04.2021 Date of Pronouncement: 25.05.2021 आदेश / O R D E R PER MANISH BORAD, A.M: By way of this appeal, the appellant has challenged the assumption of jurisdiction u/s 263 of the Income Tax Act 1961( hereinafter referred to as ‘The Act’ for short) by Ld. Pr. CIT-2 Bhopal vide order dated 04.02.2020.The assessee has raised following grounds of appeal:-

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“1.That, on the facts and circumstances of the case and in law, and in any view of the matter, the Learned Pr. CIT-2, Bhopal. Has erred in holding that the impugned assessment order dated 26.04.2017 passed u/s 143(3) of the Income Tax Act, 1961 to be erroneous and prejudicial to the interest of Revenue for complete lack of enquiry on the part of the Ld. Assessing Officer on all the stated issues. 2. That, on the facts and circumstances of the case and in law, and in any view of the matter, the ld. Pr. CIT-2, Bhopal, has erred in setting aside the impugned assessment order dated 26.04.2017 passed u/s 143(3) of the Income Tax Act,1961 holding it to be erroneous and prejudicial to the interest of the Revenue for complete lack of enquiry on the part of the Ld. Assessing Officer on all the stated issues. 3. That, the appellant craves leave to add, amend, delete any grounds of appeal before and/or at the time of hearing.

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After examining the same Ld. AO completed the assessment. He made disallowance of donation expenses of Rs.64,391/- and other expenses at Rs.3,00,000/-, thereby assessing income at Rs.62,50,011/-.

“Please refer to the order u/s 143(3) of the IT Act, 1961 dated 26.04.2017 passed by the DCIT-5(1), Bhopal for A.Y. 2015-16, whereby total income was assed at Rs.62,50,011/-. 2. From the case records of assessee for A.Y.2015-16, it was notices that the case of the assessee was selected for the following reasons under the complete scrutiny:- (i) Low income shown by large contractors (ii) Mismatch in amount paid to related person u/s 40A(2)(b) reported in Audit Report and ITR (iii) Higher turnover reported in Service Tax Return compared to ITR and assessee has deposited large amount of cash in saving bank account. On perusal of case records and assessment order dated 26.04.2017, it is observed that the assessing officer has failed to examine and verify the core issues for which the case was selected in complete scrutiny. 3. Assessment in the said case, u/s 143(3) dated 26.04.2017, was finalized without considering the above mentioned facts. This omission on part of the AO, renders the order erroneous as well as prejudicial to the interests of revenue. Therefore, i propose to invoke powers vested u/s 263 of the Income Tax Act, 1961 in respect of the order referred to above. 4. The above stated show cause notice was replied by the assessee stating as follows: “i. The assessee stated that net profit of Rs.58.85 lacs is very reasonable against total sales of Rs.79.54 crores. All books have been maintained and there is no contract work done.

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ii. As regards, mismatch in the amount paid to related persons u/s 40A(2)(b) reported in Audit Report and ITR the assessee says that these payments are on different footing as the information furnished in Audit Report and ITR related to two different categories. In ITR, information required to be given is only in regard to amount disallowable, whereas, in Audit Report details of payment made are required to be mentioned. iii. As regards, higher turnover return in Service Tax Return as compared to ITR and alleged deposit of large amount of cash in Saving Bank Account is concerned, the assessee says that there is no mismatch and the auditor has shown total receipt of services amounting to Rs.66.95 lacs and receipts from other services at Rs.24.72 lacs. However, at the time of filing of Service Tax Return the assessee has shown total services in his return. In regard to deposit of cash the assessee says that the assessee firm does not have any Saving Bank Account. Thereafter, the allegation of cash deposit is not correct.

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and rent to son of the partner, all other payments were made to partners towards interest and salary as per the terms provided in the partnership deed. These details were also filed before the Ld. AO. c) As regards 3rd reason “Higher turnover reported in Service Tax Return compared to ITR and assessee has deposited large amount of cash in saving bank account.” Ld. Sr. counsel for the assessee submitted that there was no mismatch between the turnover reported in Service Tax Return compared to ITR. Copies of half yearly return filed under Rule 7 of Service Tax Rules were placed before the ld. AO as well as Ld. Pr. CIT to draw attention to the fact that there is no mismatch. Further as regards the cash deposited in Saving Bank Account it was submitted that the assessee is a partnership firm and cannot open Saving Bank Account. Details of all Bank Account held by assessee were filed before lower authorities. Ld. Pr. CIT made no further enquiry to bring out the information as to which is the Saving Bank Account in which cash was deposited and account not disclosed by the assessee. In support of the above contention Ld. Senior Counsel for the assessee has relied on following judgment: 1. Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax, (2000) 243 ITR 83 (SC) 2. CIT v. Gabriel India Ltd . [1993] 203 ITR 108 (Bom) 3. Micro Inks Limited v. CIT (2018) 407 ITR 681 (Guj) (HC) 4. D.G. Housing Projects Ltd – [2012] 20 taxmann.com 587(Delhi)

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show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to 'its taxability and not to any incidental connection. Related question arises: can a AO pass an order without giving any proper reasons whatsoever? The issue stands settled by the Hon’ble S.C. Ld. Pr. CIT was relied following decisions: 1. CIT vs. Toyota Motor Corpn. (2008) 306 ITR 49(Delhi) dated April 2,2008 2. Toyota Motor Corporation vs. CIT (2008) 306 ITR 52(SC) 3. Pr. CIT vs. India Finance Ltd. (2016) 389 ITR 242(Calcutta) 4. State Bank of Indore v. CIT (1998) 64 ITD 209 (Indore) 5. S.N. Mukherjee vs. Union of India (1990) AIR 1984, 1990 Supl. (1) 44 DID, 28th August, 1990 6. Boston Analytics P. Ltd. Mumbai vs. ITO I.T.A.T. Mumbai B Bench ITANo.2745/Mum/2012 6. Based on the above, it is clear that, there is complete lack of enquiry on the part of the assessing officer on all the stated issues which has rendered the order erroneous and because it has resulted in a potential loss of revenue, the order is also prejudicial to the interest of revenue. The assessment order is accordingly set aside on the above three issues with the direction to conduct full and proper enquiry and also giving assessee proper opportunity of being heard. Therefore, a reasoned and speaking order should be passed by the assessing officer in accordance with law.

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M/s. Bajaj Auto Ltd. Its case was selected for complete scrutiny for following three reasons: 1. Low Income shown by large contractors. 2. Mismatch in amount paid to related persons u/s 40A(2)(b) reported in Audit Report and ITR. 3. Higher Turnover reported in Service Tax Return compared to ITR and assessee has deposited large amount of cash in saving bank account.

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"263. Revision of orders prejudicial to revenue.--(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation.--For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,-- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include-- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income Tax Officer on the basis of the directions issued by the Joint Commissioner under Section 144-A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under Section 120; (b) "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject-matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub- section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.--In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to Section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded."

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various ratio which are being consistently applied for on case to case basis.

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Officer in fixing the amount of valuation of the property. Similarly, "erroneous judgment" means "one rendered according to course and practice of court, but contrary to law, upon mistaken view of law; or upon erroneous application of legal principles". 12. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to the interests of the Revenue, then also the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be the subject-matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. We, therefore, hold that in order to exercise power under sub-section (1) of section 263 of the Act there must be material before the Commissioner to consider that the order passed 12

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by the Income-tax Officer was erroneous in so far as it is prejudicial to the interests of the Revenue. We have already held what is erroneous. It must be an order which is not in accordance with the law or which has been passed by the Income-tax Officer without making any enquiry in undue haste. We have also held as to what is prejudicial to the interests of the Revenue. An order can be said to be prejudicial to the interests of the Revenue if it is not in accordance with the law in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. There must be material available on the record called for by the Commissioner to satisfy him prima facie that the aforesaid two requisites are present. If not, he has no authority to initiate proceedings for revision. Exercise of power of suo motu revision under such circumstances will amount to arbitrary exercise of power. It is well-settled that when exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on record to satisfy it in that regard. If the action of the authority is challenged before the court it would be open to the courts to examine whether the relevant objective factors were available from the records called for and examined by such authority. The Income-tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given detailed explanation in that regard by a letter in writing. All these are part of the record of the case. Evidently, the claim was allowed by the Income-tax Officer on being satisfied with the explanation of the assessee. Such decision of the Income-tax Officer cannot be held to be "erroneous" simply because in his order he did not make an elaborate discussion in that regard. Moreover, in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that the allowance of the claim of the assessee was erroneous and that the expenditure was not revenue expenditure but an expenditure of capital nature. He simply asked the Income-tax Officer to re-examine the matter. That, in our opinion, is not permissible. Hence the provisions of section 263 of the Act were not applicable to the instant case and, therefore, the commissioner was not justified in setting aside the assessment order.”

Surjeet Auto Agency

“In our view at the relevant time two views were possible on the word "profits" in the proviso to Section 80HHC(3). It is true that vide the 2005 amendment the law has been clarified with retrospective effect by insertion of the word "loss" in the new proviso. We express no opinion on the scope of the said amendment of 2005. Suffice it to state that in this particular case when the order of the Commissioner was passed under Section 263 of the Income Tax Act, 1961, two views on the said word "profits" existed. It is not in dispute that when the order of the Commissioner was passed there were two views on the word "profits" in that section. The problem with Section 80HHC is that it has been amended eleven times. Different views existed on the day when the Commissioner passed the above order. Moreover, the mechanics of the section have become so complicated over the years that two views were inherently possible. Therefore, subsequent amendment in 2005 even though retrospective will not attract the provision of Section 263 particularly when as stated above we have to% take into account the position of law as it stood on the date when the Commissioner passed the order dated March 5,1997, in purported exercise of his powers under Section 263 of the Income Tax Act. 3. For the above reasons, civil appeals filed by the department stand dismissed.”

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only where no enquiry, as required under the law, is done. It is not open to enquire in case of inadequate inquiry. Our view is fortified by the judgment of Hon'ble High Court of Bombay in the case of CIT vs. Nirav Modi, [2016] 71 taxmann.com 272 (Bombay).

"6. It can thus be seen that though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim of deduction under section 54F of the Act in the context of fulfilling conditions contained therein and may possibly have no relevance to the question whether the sale of land gave rise to a long term capital gain. Looking to the tenor of queries by the Assessing Office and details . A.Y. 2009-10 supplied by the assessee, we are unable to accept such a condition. In that view of the matter, the observation of the Tribunal that the Assessing Officer having made inquiries and when two views are possible, revisional powers could not be exercised, called for no interference. Since with

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respect to computation and assertions of other aspects of deduction under section 54F of the Act, the Tribunal has remanded the proceedings, nothing stated in this order would affect either side in considerations of such claim. 7. No question of law arises. Tax Appeals are dismissed."

i. As regards “low income shown by large contractors” we observe that prima facie going through records it appears that the assessee is a trader and authorized dealer of M/s. Bajaj Auto Ltd. and also sales accessories and spare parts. No documents are placed before us which could prove that the assessee is a large contractor. Even otherwise the turnover of the assessee has increased from 76.42 cr. (Approx.) in A.Y. 2014-15 to Rs.79.54 Cr. (Approx.) in A.Y. 2015- 16. Gross profit and net profit ratio has also been more or less consistent at 14.72% and 0.83% for A.Y.2014-15 and 14.34% and 0.74% for A.Y.2015-16. Though there is a decline in overall net profit of Rs.4,25,773/- but the same has already been considered to a large extent by the assessing officer by disallowing expenses to the tune of Rs.3,64,391/-. Therefore, so far as this issue is concerned, we find that complete details were placed before Ld. AO and he after due application of mind and examining the necessary documents has made additions. Therefore, we find no justification in the finding of Ld. Pr. CIT directing the assessing officer to reexamine this issue. 16

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ii. As regards second issue is concerned which is “mismatch in amount paid to related persons u/s 40A(2)(b) reported in Audit Report and ITR”, we observe that complete details of payments made to relatives u/s 40A(2)(b) of the Act were placed before Ld. AO. These details also form part of tax audit report u/s 44AB of the Act. Except legal fee and rent paid at Rs.3,00,000/- & Rs.7,20,000/- paid to Deepak Nenwani(son of one of the partner), all other payments are made to partners as per the terms and conditions provided in the partnership deed. In our view, so far as payments to partners are concerned the same are already examined by the Ld. AO by examining the relevant clauses of partnerships deed. Thus there remains no occasion to make any further enquiry however, as regards the payments of legal fee and rent to Deepak Nenwani. Ld. AO was duty bound to go step further. In other words once there is a payment to a related persons Ld. AO was required to apply the provision of section 40A(2)(a) of the Act so as to examine whether such expenditure is excessive or unreasonable with regard to the fair market value of the services or facilities for which the payment is made. The reply by the assessee submitted before the Ld. AO only contains the details of payment made to relatives. The record do not show that whether any other enquiry was made by the Ld. AO to examine the reasonableness of the expenditure of legal fee of Rs.3,00,000/- and rent of Rs.7,20,000/- paid to Deepak Nenwani. We, therefore, are of the considered view that with regard to second issue of mismatch u/s 40A(2)(b) of the Act the finding of Ld. Pr. CIT

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of setting aside the order of Ld. AO needs to be partly accepted only with regard to the payment of legal fee and rent to Deepak Nanwani and in the set aside proceedings Ld. AO should examine these transactions in the light of the provision of section 40A(2)(a) of the Act.

iii. As regard to 3rd issue “Higher turnover reported in Service Tax Return compared to ITR and assessee has deposited large amount of cash in saving bank account”, it comprises of two parts; firstly, the higher turnover reported in Service Tax Return compared to ITR and secondly large cash deposited in Saving Bank Account. So far as mismatch of turnover in the Services Tax Return and ITR is concerned, we observe that in the profit and loss account service charges of Rs.66,95,750/- is shown on credit side being service charges received. In the services tax returns we find that the return for first six months shows a taxable receipt of Rs.26,47,323/- and for second half of the year service receipt of Rs.15,19,842/- which total to Rs.42,38,165/-. But apart from the taxable services assessee also received nontaxable service amounting to Rs.24,72,851/-. If both taxable and nontaxable services are added up they would almost match to the service charges shown in the profit and loss account. These details of service tax returns were filed before the Ld. AO.On the strength of these documents Ld. AO was satisfied with the submissions and was of the view that there is no mismatch in turnover as per the service tax return and ITR. We therefore are of the view there is a complete enquiry and application

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of mind by the Ld. AO on this which thus do not call for invoking the provisions of section 263 of the Act. iv. The other limb of 3rd reason is a large cash deposit in Saving Bank Account. Though assessee is a partnership firm and is not entitled to open a Saving Bank Account, but complete details of all bank account held by the assessee firm (including loan accounts) are placed on record. Since the assessee firm was not holding any Saving Bank Account, no such details were required to be filed and therefore, details of bank account filed by the assessee were accepted as it is by the assessing officer.

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conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under Section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. 17. This distinction must be kept in mind by the CIT while exercising jurisdiction under Section 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. We may notice that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT [see CIT vs. Shree Manjunathesware Packing Products, 231 ITR 53 (SC)]. Nothing bars/prohibits the CIT from

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collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 18. It is in this context that the Supreme Court in Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax, (2000) 243 ITR 83 (SC), had observed that the phrase „prejudicial to the interest of Revenue‟ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest of Revenue. Thus, when the Assessing Officer had adopted one of the courses permissible and available to him, and this has resulted in loss to Revenue; or two views were possible and the Assessing Officer has taken one view with which the CIT may not agree; the said orders cannot be treated as an erroneous order prejudicial to the interest of Revenue unless the view taken by the Assessing Officer is unsustainable in law. In such matters, the CIT must give a finding that the view taken by the Assessing Officer is unsustainable in law and, therefore, the order is erroneous. He must also show that prejudice is caused to the interest of the Revenue. 19. In the present case, the findings recorded by the Tribunal are correct as the CIT has not gone into and has not given any reason for observing that the order passed by the Assessing Officer was erroneous. The finding recorded by the CIT is that "order passed by the Assessing Officer may be erroneous". The CIT had doubts about the valuation and sale consideration received but the CIT should have examined the said aspect himself and given a finding that the order passed by the Assessing Officer was erroneous. He came to the conclusion and finding that the Assessing Officer had examined the said aspect and accepted the respondent‟s computation figures but he had reservations. The CIT in the order has recorded that the consideration receivable was examined by the Assessing Officer but was not properly examined and therefore the assessment order is "erroneous". The said finding will be correct, if the CIT had examined and verified the said transaction himself and given a finding on merits. As held above, a distinction must be drawn in the cases where the Assessing Officer does not conduct an enquiry; as lack of enquiry by itself renders the order being erroneous and prejudicial to the interest of the Revenue and cases where the Assessing Officer conducts enquiry but finding recorded is erroneous and which is also prejudicial to the interest of the Revenue. In latter cases, the CIT has to examine the order of the Assessing Officer on merits or the 21

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decision taken by the Assessing Officer on merits and then hold and form an opinion on merits that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. In the second set of cases, CIT cannot direct the Assessing Officer to conduct further enquiry to verify and find out whether the order passed is erroneous or not. 21. As held above by Hon'ble Delhi High Court revisionary powers by Ld. Pr. CIT/CIT can be held to be correct if the Ld. Pr. CIT had examined and verified the said transactions himself and given a finding on merit.

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Sd/- Sd/- (MADHUMITA ROY) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER

Indore; �दनांक Dated : 25/05/2021 Patel/PS Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order Assistant Registrar, Indore