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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: HON’BLE SHRI MAHAVIR SINGH & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
आयकर अपील सं./ (िनधाBरण वषB / Assessment Year: 2008-09) ACIT M/s. Cavinkare Pvt. Ltd., बनाम/ Central Circle-2(1), No.12, Cenotaph Road, Teynampet, Vs. Chennai. Chennai – 600 018. �थायी लेखा सं./जीआइ आर सं./PAN/GIR No. AAACB-3754-B (अपीलाथ�/Appellant) : (��थ� / Respondent) & CO No.92/Chny/2018 (Arising out of (िनधाBरण वषB / Assessment Year: 2008-09) M/s. Cavinkare Pvt. Ltd. ACIT, बनाम/ No.12, Cenotaph Road, Teynampet, Central Circle-2(1), Vs. Chennai – 600 018. Chennai. �थायी लेखा सं./जीआइ आर सं./PAN/GIR No. AAACB-3754-B (अपीलाथ�/Appellant/Cross Objector) : (��थ� / Respondent) अपीलाथ� की ओरसे/ Assessee by : Shri T. Banusekar (C.A) – Ld. AR ��थ� की ओरसे/Revenue by : Shri ARV Sreeenivasan (Addl. CIT) –Ld. DR सुनवाई की तारीख/Date of Hearing : 02-08-2022 घोषणा की तारीख /Date of Pronouncement : 19-10-2022 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by Revenue for Assessment Year (AY) 2008-09 arises out of the order of Learned Commissioner of Income Tax (Appeals)-18, Chennai [CIT(A)] dated 15-12-2017 in the matter of an assessment framed by Ld. Assessing Officer [AO] u/s.143(3) r.w.s. 147 of the Act on 23-03-2015. The grounds taken by the Revenue read as under:
1. 1. The Order of the learned Commissioner of Income Tax (Appeals) is erroneous on facts and circumstances of the case and in law.
2. The Id. CIT(A) erred in holding that the action of the Assessing Officer (AO) in resorting to re-opening of assessment u/s.147/148 for the AY 2008-09 as legally not correct and hence the assessment is annulled. 2.1. The ld. CIT(A) failed to consider the fact that the assessment for the AY 2008-09 was reopened u/s.147 of the IT Act,1961 in accordance with the provisions of sec.149 & Sec.151 of the IT Act, after obtaining the statutory approval of the Commissioner of Income-tax-l, Chennai vide C.No.203/30,31&33/CIT-1/2013-14 dt 28.03.2014 and owing to the fact that there was omission and failure on the part of the assessee by having not fully and truly disclosed all the material facts necessary for assessment and the assessment was re-opened on the basis of fresh material and specifically recording it in the reasons for re-opening with a reason to believe that income had escaped assessment. 2.2. The ld. CIT(A) ought to have appreciated the fact that, the assessee has paid certain commission to Shri. C.K. Ranganathan year after year and during the course of assessment proceedings for the AY 2011-12 it was observed that the assessee's claim of commission expenses paid to Shri. C.K. Ranganathan (One of the Director) was in contravention to the provisions of Sec.36(1)(iii) of the IT Act. Hence, it can only be construed as failure on the part of the assessee to provide primary facts necessary for assessment and to disclose fully and truly all material facts for the assessment. Thus, prima facie, there was bonafide reason for the AO to believe that there was escapement of income to invoke the provisions of sec. 148 of the Act to re-open the assessment. 2.3 The ld. CIT(A) ought to have appreciated that the reassessment proceedings would be justified if the assessment order is silent or does not record reasons or anlaysis of material on record. 2.4 The Ld. CIT(A) erred in not following the decisions of the Hon’ble Supreme court of India in the case of Raymond Woolen Mills Ltd Vs ITO [1999] 236 ITR 34 (SC) and Claggett Brachi Co. Ltd. Vs CIT [1989] 44 Taxman 186 (SC) wherein the Apex Court had held that when the AO came into possession of information during course of subsequent assessment proceedings that income for preceding AY had escaped assessment, he was within the jurisdiction to make re-assessment, which decision is squarely applicable to the facts and circumstances of this case. 2.5. Having regard to the decision rendered by the Jurisdictional Hon'ble High Court of Madras in the case of Revathy C P Equipment Ltd., Vs DCIT [2000] 241 ITR 856 (Madras), wherein it has been held that information found during the subsequent assessment year/s can be a reason for re-opening the assessment for an earlier year u/s.147 of the IT Act, ought to have upheld the decision of the AO to re-open the assessment for the AY 2008-09 in the assessee's case.
For these grounds and any other ground including amendment of grounds that may be raised during the course of the appeal proceedings, the order of learned CIT(Appeals) may be set aside and that of the Assessing Officer be restored. RELIEF CLAIMED IN APPEAL The order of the learned CIT (Appeals) may be set aside and that of the Assessing Officer be restored.
2. The assessee has filed cross-objections wherein the assessee seeks adjudication of issues on merits by Ld. CIT(A). The registry has noted a delay of 2 days in the cross-objection which stand condoned considering the period of delay. The grounds taken by the assessee read as under: -
1. 1. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the reopening is bad in law.
2. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the disallowance of Rs.2,00,87,572 was not warranted u/s.36(1)(ii) in the facts and circumstances of the case.
3. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the Assessing Officer erred in disallowing the claim of deduction u/s.80-IC to the extent of Rs.7,21,93,609/- in the facts and circumstances of the case.
4. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the disallowance of Rs.89,99,52,026/- was not warranted u/s.40(a)(ia) in the facts and circumstances of the case.
5. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the disallowance of Rs.25,96,000/- was not warranted u/s.40A(2) in the facts and circumstances of the case.
6. For that the assessee objects to the levy of interest u/s.234B and 234C PRAYER For these grounds and such' other grounds that may be urged before or during the hearing of the appeal it is most humbly prayed that the Hon'ble Tribunal may be pleased to a. Quash the order passed u/s.143(3) r.w.s.147 and / or b. Delete the disallowance of Rs.2,00,87,572/- u/s.36(1)(ii) and / or c. Delete the disallowance of deduction of Rs.7,21,93,609/- claimed u/s.80IC and/or d. Delete the disallowance of Rs.89,99,52,026/- u/s.40(a)(ia) and / or e. Delete the disallowance of Rs.25,96,000/- u/s.40A(2)(a) or f. Pass such other orders as the Hon'ble Tribunal may deem fit.
3.1 The Ld. Sr. DR advanced arguments and placed on record documents containing reasons recorded by Ld. AO to reopen the case as well as sanction / approval obtained from appropriate authority to - 4 - reopen the case of the assessee. The Ld. Sr. DR submitted that the reasons were properly recorded and due approval as required under law was obtained and therefore, the reopening was perfectly valid. It was also submitted that subsequent scrutiny proceedings indicated escapement of income in the hands of the assessee which constitute tangible material and therefore, the findings given in the impugned order were incorrect. 3.2 The Ld. AR, on the other hand, advanced arguments supporting the impugned order. Referring the documents as placed on record, the Ld. AR submitted that reopening was bad-in-law. The Ld. AR submitted that the case was already scrutinized u/s 143(3) and it was reopened beyond 4 years and there was no allegation that there was any failure on the part of the assessee to disclose correct particulars of income. The reasons as supplied to the assessee do not indicate as to what was the failure on the part of the assessee. The Ld. AR also assailed the approval given by appropriate authority and submitted that the same was given in a mechanical manner. 3.3 Having considered rival submissions and after perusal of case records including judicial pronouncements as cited during the course of hearing before us, our adjudication would be as under. Assessment Proceedings 4.1 The original return of income as filed by the assessee was scrutinized u/s 143(3) on 16.12.2010. However, during scrutiny assessment proceedings for AY 2011-12, it transpired that the assessee paid huge commission to its Managing Director Shri C.K. Ranganathan apart from director’s remuneration. This year the commission so paid by the assessee was Rs.200 Lacs which was to be disallowed u/s 36(1)(ii). Accordingly, the case was reopened and notice u/s 148 was issued on 29.03.2014 which is beyond 4 years from the end of relevant assessment year. The reasons for reopening were furnished to the assessee on 13.08.2014. 4.2 The assessee, vide reply dated 16.03.2015, objected to reasons and submitted as under: - "It is unreasonable to allege that there is a failure on the part of the undersigned to disclose fully and truly all material facts necessary for assessment. Further in this regard, reference is drawn to the decision of the Delhi High Court in the case of Mohan Gupta (HUF) v CIT Decided on 28.01.2014 W.P.(C) 7660/2012 (copy enclosed) wherein it was observed thus: In this case, the reasons provided under Section 148 are that "by reason of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment and by wrong treatment of income", certain income has escaped assessment".
4.3 However, the objections were rejected by Ld. AO by observing as under: - (i) The Assessing Officer should have a reason to believe, a reason to believe occur when the AO discovers some material or get a new insight subsequent to conclusion of original assessment proceeding. In this case, the AO discovers that the assessee company has paid a sum of Rs. 2 crores to Shri. C.K. Ranganathan apart from directors’ remuneration of Rs.1.45 crores. This was recorded in the reasons as well. So the reason recorded is specific and not a vague reference as stated in your objection. (ii) The assessee company refers to A.Y, 2011-12 and its commission payment, Board resolution, it is clearly evident that such a commission was paid apart from remuneration and it is in nature of sums otherwise payable on profit or dividend. Even you are not disputing the fact that commission was paid, even break for remuneration paid is stated by you. (iii) Your claim that the payment was made towards service rendered by him. It is clear that Shri. C. K. Ranganathan is paid salary and other perks and the commission is paid over and above the salary and even your objection does not specifically state what was the specific service rendered by Shri. C.K. Ranganathan for which the said commission payment was made. (iv) In the judgement you have quoted Shahzada Nand & Sons which clearly states that payment of commission must be for services rendered. Even in the reasons recorded it was clearly stated that the commission was not for specific service rendered. Hence the case law will not apply to you. (v) Similarly CIT Vs. Convertech Equipments it was held commission paid for service rendered by the directors as per the terms of appointment could not be said to be distribution of profit. In this case, the commission was not on account of terms of appointment but by a board resolution, that too not for any specific services rendered. Hence this decision will not apply in the case of this assessee. (vi) Further, your objection does not state what is that commercial expediency in A.Y.2008-09 that demanded to pay a commission. Your claim that already dividend in respect of shares held has been separately paid amounting to Rs.63,60,000/-. However the dividend paid is a sum per share whereas the commission paid was on % of gross turnover. The assessee company as well as Shri. C.K. Ranganathan will have an advantage in giving / getting commission than declaration of dividend. Hence it is clearly evident that the commission payment is otherwise payable as dividend/profit. In the assessee's case there was a bonafide insight, capable of leading to the formation of belief. The Assessing Officer has rightly linked this insight linking the reasons with belief of escapement. Hence there was clear reason to believe that income has escaped assessment. 4.4 Proceeding further, Ld. AO framed the assessment after making certain additions / disallowances in the hands of the assessee. These includes disallowance u/s 36(1)(ii), disallowance of 80-IC claim, disallowance of third part transactions u/s 194C and Salary payment etc. Aggrieved, the assessee assailed the assessment proceedings on legal ground as well as quantum additions on merits before Ld. CIT(A) which was disposed-off vide impugned order dated 15.12.2017.
Appellate Proceedings 5.1 The assessee assailed the reassessment proceedings on the ground that no action could be taken u/s 147 unless any income chargeable to tax had escaped assessment by reason of failure to file return of income or disclose fully and truly all material facts necessary for the assessment of that assessment year. In the reasons, Ld. AO did no indicate that any income chargeable to tax escaped assessment and Ld. AO did not draw reference to any fresh tangible material based on which belief was formed. The assessee had made full and true disclosure of all facts during the scrutiny assessment proceedings and therefore, no action u/s 147 could be undertaken after 4 years. For the same, reliance was placed on various judicial pronouncements as enumerated in assessee’s submissions before Ld. CIT(A). The assessee submitted that in the present case, AO has not brought on record the satisfaction that the income escaped assessment on account of failure of assessee to disclose truly and fully all material facts necessary for the assessment. 5.2 Another argument was that there was no fresh tangible material to reopen the case. The assessee also averred that commission paid as a percentage of turnover was a part of remuneration the Chairman and Managing Director for the services rendered by him as fixed by the Board of Directors through duly passed resolution and therefore, the same was deductible u/s 37(1). The assessee also advanced other arguments on merits of the addition. 5.3 The Ld. CIT(A) allowed additional legal grounds raised by the assessee and held the ground on merits as infructuous. The relevant adjudication of Ld. CIT(A) was as under: - During the appellate proceedings, the appellant raised a significant ground that in the absence of any fresh material in the possession of the AO and that too after the expiry of four years, the issuance of notice u/s. 148 for reopening the already completed assessment is ab initio void. In order to fortify this ground, the appellant relied on the decision of the Hon'ble Apex Court in the case of CIT Vs Kelvinator of India Ltd (2010) 320 ITR 561. It is a fact that the assessment was reopened beyond the period of 4 years. Further as pointed out by the AR, there were no fresh materials which would justify the invocation of the provisions of section 147. It is also true that the AO has not brought on record any failure on the part of the appellant to disclose fully and truly all material facts necessary for its assessment. Based on all these facts and respectfully following the decision of the Hon'ble Apex Court cited supra, I am convinced that the action of the AO in resorting to reopening of the assessment is legally not correct and hence the assessment is hereby annulled. Accordingly, the grounds of appeal raised against reopening are allowed. Since it has been decided that the assessment itself has no legs to stand, the other grounds have become infructuous and hence are dismissed.
- 8 - 8. In the result, the appeal is allowed.
The Ld. CIT (A) thus held that in the absence of any tangible material, the reopening would not be justified. The Ld. AO has not brought on record any material failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. Aggrieved, the revenue is in further appeal before us. Our findings and Adjudication 6. From the facts it emerges that the assessee’s case was scrutinized in regular assessment proceedings u/s 143(3) on 16.12.2010. The perusal of assessment order would show that there is no discussions, whatsoever, on the issue of disallowance u/s 36(1)(ii) as flagged by Ld. AO in the reasons recorded to reopen the case of the assessee. There is nothing on record which would show that any such query was raised by Ld. AO during the course of assessment proceedings and any such information was furnished by the assessee during the course of regular assessment proceedings.
Subsequently, the case was reopened on the basis of findings rendered in assessment proceedings for AY 2011-12 wherein it was found that the assessee paid excessive commission to its Managing Director which would require disallowance u/s 36(1)(ii). The commission was based on certain percentage of gross turnover and not for any specific services rendered by the assessee. Any sum so paid by way of bonus or commission which could not have been otherwise payable as dividend is not an allowable expenditure u/s 36(1)(ii). Since similar payment was made by the assessee in this year, the case was reopened and notice u/s 148 was issued on 29.03.2014 to disallow similar payment made in this year. Thus, the case has been reopened beyond 4 years and accordingly, proviso to Sec.147 would be applicable which provide that no action of reopening shall be taken unless the income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment for that year.
The arguments of Ld. AR are two-fold i.e., there is no fresh tangible material which would justify reopening and secondly, there is no allegation that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year. To adjudicate the same, we appreciate the reasons recorded by Ld. AO to reopen the case and approval obtained from appropriate authority which read as under: - Form for recording the reasons for initiating proceedings u/s. 147 and for obtaining the approval of the Commissioner of Income-tax, Chennai-I, Chennai 1. Name & Address of the assessee M/s. Cavinkare P. Ltd., No.12, Cavin Ville, Cenotaph Road, Teynampet, Chennai – 600 018.
PAN / GIR No. AAACB3754B 3. Status Company 4. Ward/ circle / Range DCIT, Company Circle-I(3), Chennai 5. Assessment year in respect of which is A.Y 2008-09 proposed to issue notice u/s. 148 6. The quantum of income which has escaped Rs. 2,00,87,572/- assessment 7. Whether the provisions of Sec. 147(a) or No 147(b) are applicable or both the sections are applicable 8. Whether the assessment is proposed to be No made for first time. If the reply is in the affirmative please state: a) Whether any voluntary return had been N.A filed and b) If so, the date of filing the said return
If the answer to item 8 is in the negative, N.A please state a) The income originally assessed Rs. 12,62,85,670/- (normal provisions) Rs. 41,77,37,245/- (u/s 115JB) b) Whether it is a case of under assessment, Yes assessment at too low a rate, assessment which has been made the subject of excessive relief or allowing of excessive loss or depreciation 10. Whether the provisions of Sec. 150(1) are No applicable. 11. Reasons for the belief that income had escaped assessment During the scrutiny proceedings for A.Y. 2011 -12, it was ascertained that the assessee has paid a sum of Rs.7,98,37,813/- as commission to Managing Director- shareholder Shri C.K.. Ranganathan apart from director's remuneration of Rs.2,76,00,000/-. The commission is fixed not for specific service rendered but by a board’s resolution at the rate of 1% of gross of turnover of all the units expect dairy and 0.25% of the dairy unit. Since any sum paid by way of bonus or commission which could have been otherwise payable as dividend is not an allowable expenditure u/s 36(1)(ii), the payment by way of commission was disallowed. During the A.Y. 2008-09, the assessee has paid a sum of Rs.2,00,87,572/- as commission to Shri C.K Ranganathan apart from director's remuneration of Rs.1,45,04404/-. The same requires to be disallowed u/s 36(1)( ii). Since there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, there is a reason to believe that the income has escaped assessment. Proposal soliciting approval from the Commissioner of Income-tax, Chennai-I, Chennai, is submitted.
The proposal has been moved by Ld. AO through Addl. Commission of Income Tax, Company Range-1, Chennai wherein Ld. Addl. Commissioner has proposed that sanction may be accorded to the Assessing officer for issuance of notice u/s 148 in the case of the assessee for the reasons mentioned in the proposal letter. The proposal has finally been accepted by sanctioning authority by writing the words ‘Yes, I am satisfied.’ 9. Upon perusal of the same, it could be gathered that Ld. AO recorded elaborate reasons and arrived at concrete conclusion that there was escapement of certain income in the hands of the assessee - 11 - for this year. The said belief was based on assessment proceedings of subsequent assessment year. This material, in our considered opinion, certainly constitutes tangible material / information leading to reopening the case of the assessee. As long as there is independent application of mind by Ld. AO as to possible escapement of income, the source of fresh tangible material is immaterial / irrelevant. The only requirement under law is that the belief should not be based on borrowed satisfaction rather the belief should be arrived at by Ld. AO on the basis of independent application of mind. In the present case, Ld. AO has recorded clear reasons which have led to formation of the belief that there was escapement of income in the hands of the assessee. It could also be gathered that Ld. AO has recorded a clear finding that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. In fact, the assessee, in reply dated 16.03.2015, objected to reasons and controverted the allegation of Ld. AO that there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Therefore, the argument that no such allegation were made by Ld. AO in the supplied reasons are devoid of any merits and the same could not be accepted. The argument raised by Ld. AR is too technical. The conditions necessary to reopen the case, in our opinion, were duly fulfilled by Ld. AO and the reassessment proceedings were perfectly valid.
Our view is duly supported by the decision of Hon’ble Supreme Court in the case of Ess Ess Kay Engineering Co. Pvt. Ltd. V/s CIT (247 ITR 818; 23.07.1997) wherein Hon’ble Court held that there was no bar for Ld. AO to reopen the assessment of an earlier year on the - 12 - basis of his findings of fact made on the basis of fresh materials in the course of assessment of the next assessment year.
The Hon’ble Supreme Court in the case of Raymond Woollen Mills Ltd. vs. ITO (236 ITR 34; 17.12.1997) upheld the proposition that we have only to see whether there was prima facie some material on the basis of which the Department could reopen the case of the assessee. The sufficiency or correctness of the material is not a thing to be considered at the stage of reopening.
The decision of Hon’ble Supreme Court in New Delhi Television Ltd. vs. DCIT (424 ITR 607) is a case wherein the claim was already examined by revenue in regular assessment proceedings (para 15 & 16). The Hon’ble Court in Para-22 held that subsequent facts which come to the knowledge of the assessing officer can be taken into account to decide whether the assessment proceedings should be re- opened or not. Information which comes to the notice of the assessing officer during proceedings for subsequent assessment years can definitely form tangible material to invoke powers vested with the assessing officer under section 147 of the Act. At the stage of issuance of notice, the assessing officer is to only form a prima facie view. The material disclosed in assessment proceedings for subsequent years was sufficient to form such a view. Regarding question no.2, the facts were that the claim was already examined by revenue in regular assessment proceedings. Therefore, Hon’ble Court held that the assessee was to disclose all the primary facts necessary for assessment. However, it was not required to give any further assistance to the assessing officer by disclosure of other facts. It was for the assessing officer at this stage to decide what inference should - 13 - be drawn from the facts of the case. However, in the present case, we find that no such examination or verification was done by Ld. AO in regular assessment proceedings.
The Ld. AR has relied on the decision of this Tribunal in M/s Rasi Seeds Private Ltd. vs. DCIT (ITA No.2134/Chny/2015 dated 29.07.2022) for the submissions that the approval was granted in a mechanical manner. However, the said argument would not hold much water in the light of clear reasons recorded by Ld. AO to reopen the case of the assessee. The Ld. Addl. CIT has moved proposal for issuance of notice u/s 148 against the assessee. The proposal has duly been accepted by Commissioner of Income Tax and approval has been sanctioned in clear terms. Therefore, this argument is not to be accepted.
Finally, considering the entirety of facts and circumstances of the case, the adjudication of Ld. CIT(A) that there was no fresh tangible material, could not be upheld. It could also not be accepted that there was full and true disclosure qua the issues flagged in the reassessment proceedings at the time of regular assessment proceedings since no such examination / verification of the issues was done by Ld. AO. Accordingly, the findings of Ld. CIT(A) stand reversed. The revenue’s appeal stand allowed.
The assessee, in its cross-objection, has sought adjudication of the issues on merits. Since Ld. CIT(A) has not dealt with the issues on merits in the impugned order, the appeal stand remanded back to the file of Ld. CIT(A) for adjudication of the issues on merits. The assessee is directed to substantiate its stand. The corresponding grounds raised in the cross-objections stand allowed.
- 14 - 16. The revenue’s appeal stand allowed. The assessee’s cross- objections stand partly allowed in terms of our above order. Order pronounced on 19th October, 2022.