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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Shri R.K. Panda & Shri Laliet Kumar
O R D E R Per Laliet Kumar, J.M.
The appeal of the assessee for A.Y. 2017-18 arises from the order of Principal Commissioner of Income Tax, Hyderabad – 1 dated 29.03.2022 invoking proceedings under section 263 of the Income Tax Act, 1961 (in short, “the Act”) wherein the order passed by Assessing Officer on 24.12.2019 was set aside.
The grounds raised by the assessee reads as under :
“1. The order u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') passed by the Ld.Pr. Commissioner of Income Tax, Hyderabad (hereinafter referred to as 'the Ld. Pr.CIT is erroneous both on facts and in law.
2. The Ld. Pr.CIT has grossly erred in passing the revisionary order without satisfying the twin conditions that the order should be both erroneous and prejudicial to the interest of the revenue.
3. The Ld. Pr. CIT erred in passing the revisionary order by forming different opinion from that of the Assessing Officer taken during the course of assessment proceedings.
4. The Ld. Pr. CIT ought to have well appreciated that the issue was already examined by the AO thoroughly in the course of assessment proceedings u/s 143(3) of the Act on 24.12.2019 and has not meddled with the above issue as he was fully satisfied with the details furnished as available with him and therefore the Ld. Pr. CIT cannot direct the Ld.AO u/s 263 of the Act to re-examine the same issue or conduct further enquiries on the issue already considered by the AO.
The Ld. Pr. CIT ought to have appreciated that there is no mistake of application of law or shortcoming or failure on the part of the AO in the making further enquiry or examination of the issues.
6. The Ld. Pr. CIT ought to have appreciated that the AO has verified all the issues which, in the opinion of the AO needs examination and therefore taking recourse u/s 263 of the Act on the issues examined is erroneous.
7. The Ld. Pr.CIT ought to have appreciated the fact that AO has examined the issues during the course of assessment proceedings, when the assessment order is passed by a quasi judicial authority, the same is to be considered as final when there is neither wrong application law nor omission of any issue to be examined.
The Ld. Pr. CIT ought to have appreciated that there is no lapse on the part of the Assessing Officer to examine the issues raised by the Pr. CIT and that there is no need to record in the assessment order all the issues examined and satisfied by the Assessing Officer.
9. The Ld. Pr. CIT erred in directing the Aa to set aside the assessment made u/s 143(3) which passed on 24.12.2019 passed by the assessing officer for the assessment year 2017-18.
10. The Ld. Pr. CIT erred in directing the AO to verify the aspect to the limited extent and pass the order by giving a proper opportunity of being heard to the assessee.
11. The Ld. Pr. CIT ought to have appreciated the fact that the expenditure incurred towards finance cost is an allowable expenditure u/s 37 of the Act. 12. The Ld. Pr. CIT ought to have appreciated the fact the expenditure is incurred wholly and exclusively for the purpose of business and thus it is an allowable expenditure u/s 37 of the Act.”
The brief facts of the case are that assessee is engaged in real estate business, e-filed its return of income on 26.10.2017 for A.Y. 2017-18 admitting current year loss of Rs.2,21,17,226/- under normal provisions and book loss of Rs.2,13,71,262/- u/s 115JB of the Act. The case was selected for scrutiny under CASS and the assessment was completed u/s 143(3) of the Act on 24.12.2019 by assessing loss at Rs.1,30,49,499/- due to disallowance u/s 14A and u/s 40(a)(ia) of the Act.
4. The ld.PCIT on perusal of record noted that as there was no revenue from operations, the expenditure incurred on finance cost has to be capitalized and cannot be treated as an allowable expenditure u/s 37 of the Act. He therefore issued a notice u/s 263 of the Act to the assessee on 15.02.2022. In response to the same, learned Authorised Representative of the assessee objected to the revision proceedings and mentioned that the issue of disallowance of interest was in appeal before the ld.CIT(A). The objections of the assessee on the initiation of revision proceedings were rejected and the order was held to be erroneous and prejudicial to the interest of revenue. The ld.PCIT set aside the issue of allowability of expenditure u/s 37 of the Act to the file of Assessing Officer to the limited extent for verification with certain directions by observing as under at paragraph 3 of his order :
“3. The submissions of the Authorized Representative of the assessee have been carefully considered. As seen from the assessment records, the claim of the Authorized Representative of the assessee that the issue in the present proceedings have been verified and allowed by the Assessing Officer is not correct. With regard to the other claim that the tax payer is in appeal on the issue of disallowance of interest before CIT (A), therefore, the present proceedings are not correct is also not tenable in view of the reason that the Assessing Officer made an ad-hoc disallowance of 30% of the total finance cost stating that the same is disallowed, as no TDS was done u/s 40(a) (ia) of the I.T Act, whereas the entire amount should have been disallowed due to contravention of TDS provisions, on which the taxpayer is in appeal against the said ad-hoc disallowance. Therefore the issues before the CIT (A) and in the present proceedings are different as discussed above. Therefore the objections of the taxpayer on the initiation of revision proceedings are rejected and the order is held to be erroneous and prejudicial to the interest of revenue as per provisions of the I T Act section 263.” (emphasis supplied by us).
In view of the above, ld.PCIT set aside the issue to the file of Assessing Officer to the limited extent to verify the alleged issue and to pass orders in accordance with the law.
Feeling aggrieved with the order of ld.PCIT passed u/s 263 of the Act, assessee is now in appeal before us.
Before us, the ld.AR for the assessee has drawn our attention to the questionnaire issued by the Assessing Officer wherein at page 69, it was mentioned as under : “2. Further, you have debited an amount of Rs.2,31,07,667/- towards interest on loans (as per note no.15: finance cost). In this connection
please clarify to whom the same was paid by you please confirm whether you have deducted TDs on this payment or not. In case if the interest amount has been offered to tax by the recipients, please furnish Form 26A duly signed by an Accountant. Otherwise, the same will be added back to the income of the assessee as per the provisions of Sec. 40(a)(ia) of the Income tax Act, 1961.
8. It was submitted by the ld.AR that after the Assessing Officer enquired from the assessee about the allowability of the expenditure, the assessee had replied to the said enquiry and thereafter, the Assessing Officer had passed assessment order whereby the Assessing Officer had restricted the disallowance to 30% of the amount i.e., Rs.2,31,07,667/-. The order of the Assessing Officer dealing with the above said issue is as under : “5. Disallowance of U/s.40(a)(ia). It is seen that during the year, the assessee has paid an interest of Rs. 2,31,07,667/- on loans from financial Institutions. However, the assessee has not deducted tax at source on the same. Accordingly a show-cause letter was issued to the assessee requiring it to furnish the following details / clarifications. ………“you have debited an amount of Rs.2,31,07,667/- towards interest on loans (as per note no.15: finance cost ). In this connection please clarify to whom the same was paid by you please confirm whether you have deducted TDS on this payment or not. In case if the Interest amount has been offered to tax by the recipients, please furnish Form 26A duly signed by an Accountant. Otherwise, the same will be added back to the income of the assessee as per the provisions of Sec. 40(a)(ia) of the Income tax Act, 1961. In this connection the assessee has submitted form.26A in respect of Rs.1,83,94,752/- for payment to M/s.Kronafinsteck Pvt.Ltd and Rs.47,13,202/- to M/s. Monarch Reasearch and Brokerage Pvt. Ltd. On verification of the form 26A submitted, it is noticed that the same is not as prescribed under Rule.31ACB and is not certified by Accountant as required u/s.201 of the Income-tax Act, 1961. Further, no evidence is produced by the assessee to confirm that the above parties have included the above income in their Return of Income by providing their Financial Statements and Balance sheet and computation of total income along with copy of ITR. Hence 30% of interest expenditure which works out to Rs.69,32,300/- is disallowed u/s 40(a)(ia) (30% of Rs.2,31,07,667/-) and added back to the income of the assessee.
It was submitted by the learned Authorised Representative that after the Assessing Officer enquired with the assessee about the allowability of the expenditure, the assessee had replied to the said questionnaire and thereafter, the Assessing Officer had passed assessment order whereby the Assessing Officer restricted the disallowance to 30% of the amount i.e. Rs.2,31,07,667/-.
10. It was submitted by the learned Authorised Representative that the same issue of disallowability of Rs.2,31,07,667/- was pending for adjudication before the ld.CIT(A) and ld.PCIT issued notice to the assessee on 15.02.2022 and the relevant para 2 of the said notice reads as under :
“2. On perusal of the assessment records, it is observed from the P&L account that an amount of Rs,27,00,000/- was credited towards other income and an amount of Rs.2,31,07,667/- was debited towards financial cost, clearly indicating that, the assessee has no revenue from operations, therefore. the expenditure towards financial cost was not an admissible as expenditure u/s.37 of the I.T.Act. 1961 which has been erroneously allowed by the Assessing Officer.
3. In view of the facts narrated above, the said order passed by the Assessing Officer dated 24-12-2019 is erroneous and prejudicial to the interest of revenue.
Explanation-2 of Section 263(1) says: "For the purpose of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner. "(a) The order is passed Without making inquiries or verification which should have been made;…………”
The learned Authorised Representative has submitted that the assessee filed a detailed reply to the said show cause notice. However, the ld.PCIT was not convinced with the reply given by the assessee and therefore, the assessee is now before us for the reasons mentioned hereinabove.
The learned Authorised Representative for the assessee submitted that the issue of disallowability of an amount of Rs.2,31,07,667/- was examined by the Assessing Officer and thereafter, the Assessing Officer has restricted the disallowance to an extent of 30% of amount i.e. for a sum of Rs.69,32,300/-. It was submitted that if the same issue has been examined by the Assessing Officer and the Assessing Officer has restricted the disallowance to an extent of Rs.30%, then it is not permissible to the ld.PCIT to change the opinion and disallow the entire amount by holding that the assessee was required to capitalize the above said amount as the project of the assessee has not started and the said amount was pre-operative business expenditure. It was submitted that the view taken by the Assessing Officer and the view taken by the ld.PCIT are different and when there are two different possible views, then the order of the Assessing Officer cannot be set aside merely because of the reason that the Assessing Officer has not taken the view as taken by the ld.PCIT.
The second argument raised by the learned Authorised Representative was that the assessee has challenged the order passed by the Assessing Officer before the ld.CIT(A) and the ld.CIT(A) was having co-terminus power as that of Assessing Officer and further the ld.CIT(A) has a power to enhance the additions and for the above said proposition, he relied upon the decision of Hon’ble Delhi High Court in the case of PCIT v. Jansampark Advertising & Marketing (P.) Ltd. [2015] 56 taxmann.com 286/231 Taxman 384/375 ITR 373 (Delhi) and also section 251 of the Income Tax Act 1961 , which is to the following effect:-
(1) In disposing of an appeal, the 88[***] 89[Commissioner (Appeals)] shall have the following powers— (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment ; [(aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment;] (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit.
On the basis of the above decision and provision, it was submitted that once the issue is pending for adjudication before the ld.CIT(A), it was not appropriate and is not in accordance with the scheme of the Act, for the ld.PCIT to exercise power u/s 263 of the Act. Lastly, it was submitted that the assumption of jurisdiction by the ld.PCIT was wrong as the ld.PCIT has wrongly concluded that the assessee has not started its operations. It was submitted that assessee is deriving income from the investment in real estate as well as from the rental income. The assessee has let out the property on 01.12.2011 and the assessee is drawing the rent from the same person namely, M/s. Vivid Labs. He had also drawn our attention to the activities of the assessee for the earlier year wherein the income from the rent have consistently been shown from A.Ys. 2014-15 to 2016-17. Learned Authorised Representative has drawn our attention to the note given by the assessee to the Assessing Officer wherein he has categorically mentioned that the assessee has carried out the business of purchase, sale, development and taking lease of the properties and therefore, the conclusion drawn by the ld.PCIT was incorrect.
On the other hand, the learned Departmental Representative has drawn our attention to the computation of income for A.Y. 2015-16 wherein the revenue from operation has been shown as nil and therefore, the ld.PCIT was right in disallowing the expenditure and rightly held that the same be pre-operative expense and hence, the order passed by the ld.PCIT was correct. It was submitted that the Revenue had filed the paper book whereby the Revenue seek to rely upon the following decisions :
Smt. Tara Devi Aggarwal Vs. CIT - 88 ITR 323 (SC) 2. Rampyari Devi Saraogi Vs. CIT – 67 ITR 84 (SC) 3. Gee Vee Enterprises Vs. ACIT – 99 ITR 375 (Delhi) 4. Radiant Life Care Mumbai Pvt. Ltd. Vs. PCIT, Mumbai – & 896/Mum/2021 dt.31.05.2022.
We have heard the rival contentions and perused the material on record. Whether the jurisdiction exercised by the ld.PCIT was correct or not, it is essential to point out whether the order passed by the Assessing Officer was erroneous and prejudicial to the interest of Revenue. For the above said purposes, we may draw strength from various judgments of Hon’ble Supreme Court and High Courts. In the case of M/s. United Breweries Ltd wherein one of us i.e., Judicial Member is a party; the Tribunal has held as under : “09 We have considered the rival contentions and submissions including the decisions relied upon by both the sides. At the time of argument the Ld. AR had relied on the order passed by the AO u/s.201 & 201(1A) and the Ld. DR relied on the order giving effect passed by the AO pursuant to direction issued by the CIT u/s.263 of the Act. In our view, we have to test the legality of the order passed by the CIT u/s.263 of the Act, based on the material available with him at the time of passing of the order. Under the provisions of the Act, the CIT may call for and examine the record of any preceding this Act and pass an order only if the twin conditions are satisfied, namely, the order passed by the Assessing Officer is erroneous; and also prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd. Vs CIT (2000) 243 ITR 83 (supra) has held that both of the above conditions have to be satisfied. It has been held that, “A bare reading of section 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue-recourse cannot be had to section 263(1) of the Act. The provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase “prejudicial to the interests of the Revenue" is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to erroneous order of the Income-tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. The phrase "prejudicial to the interest of the 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 interests of the Revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law.” A similar view has also been taken by the Hon’ble Apex Court in the case of CIT Vs Max India Ltd. (2007) 295 ITR 282 (supra), wherein it has been held as under: “The phrase "prejudicial to the interests of the Revenue" in section 263 of the Income-tax Act, 1962, has to be read in conjunction with the expression "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 interests of the Revenue. For example, when the Assessing Officer adopts one of two courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Assessing Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the Revenue, unless the view taken by the Assessing Officer is unsustainable in law.” That the twin tests of the order being erroneous and prejudicial to the interest of revenue are both necessary has been elaborated by the Hon’ble Rajasthan High court in the case of CIT-1, Jaipur vs M/s Green Triveni Developer, / 2015, wherein it was held that, 9. It is no longer res integra that the revisional jurisdiction available to a Commissioner under section 263 of the Act is essentially circumscribed by the determinant that the order of the Assessing Officer is erroneous so much so that it is prejudicial to the interests of the Revenue. This statutory enjoinment carves out an extremely constricted ambit of such discretionary jurisdiction. The word "considers" applied in the statutory provision involved, signifies a genuine satisfaction of that authority that the order of the Assessing Officer is erroneous and that the interests of the Revenue is prejudicing thereby. Any exercise of the revisional jurisdiction, bereft of such satisfaction and/or finding that the order of the Assessing Officer is erroneous and that it is prejudicial to the interests of the Revenue and that too, based on tangible materials on record, is impermissible rendering the resultant order void.
Judged on the above touchstone, we are of the unhesitant opinion, having regard to the materials on record, that no interference with the impugned order of the learned Tribunal is warranted, in the facts and circumstances of the case. No substantial question of law, as contemplated by section 260A of the Act, exists to be examined. The principle that emerges out of the above cited decisions are that the twin requirement of the order being erroneous and prejudicial to the interests of revenue should be satisfied and that the CIT should invoke the powers u/s 263 only after an enquiry by him to establish the twin conditions.
10. There is one more condition imposed upon the Ld CIT before invoking revisional power u/s 263 of the Act. In the matter of Pr. CIT v. Delhi Airport Metro Express P. Ltd [ITA.705/2017, dt.05.09.2017], ITO v. D.G. Housing Projects Ltd. 2012 (343) ITR 329 (Delhi), decided by Delhi High Court and also in the case of CIT v. Nirav Modi, 390 ITR 292, it was held that it is incumbent on the CIT to conduct some minimum enquiry before invoking the jurisdiction u/s.263 and set aside the order passed by the AO. In the case of Nagesh Knitwears P Ltd (2012)(345 ITR 135), the Hon’ble Delhi High Court has elucidated and explained the scope of the provisions of sec. 263 of the Act and the same has been extracted by the Delhi High court in the case of CIT Vs. Goetze (India) Ltd (361 ITR 505) as under:- “Thus, in cases of wrong opinion or finding on merits, the Commissioner of Income tax has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order is not sustainable in law and the said finding must be recorded. The Commissioner of Income tax cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the Commissioner of Income tax must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the Commissioner of Income tax 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 Commissioner of Income tax 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 to the Assessing Officer would imply and mean the Commissioner of Income tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question….” Similar view has been expressed by Hon’ble Madras High Court in the case of CIT Vs. Amalgamations Ltd (238 ITR 963). The law interpreted by the High Courts makes it clear that the Ld Pr. CIT, before holding an order to be erroneous, should conduct minimum enquiries or verification in order to show that the finding given by the assessing officer is erroneous.
On the basis of above discussed legal propositions on the revisional power of ld.CIT(A), we are required to examine whether the action of the ld.CIT(A) fulfills the twin test or whether the Assessing Officer has examined the issue or not.
From the question posed to the assessee by the Assessing Officer in the questionnaire reproduced hereinabove, it is clear that the Assessing Officer has made enquiries from the assessee during the course of assessment. In light of the above, we can safely conclude that the present case is not a case of no enquiry or lack of enquiry. In the present case, the Assessing Officer has made enquiries and thereafter, instead of disallowing the entire expenditure, had restricted the disallowance to 30% of the amount. Therefore, it can be assumed that there is an application of mind by the Assessing Officer after due examination of the facts of the case on record. It may be noted that the view taken by the Assessing Officer though may not be echoing with the view as that of the ld.PCIT, as the ld.PCIT has held that the entire expenditure of the financial expenditure made by the assessee has to be capitalized being pre-operative period expenditure. Nonetheless, the Assessing Officer on the other hand has allowed the business expenditure to the extent of 70% and has restricted to 30% being violation of section 40(a)(ia) of the Act. Once the issue has been examined, it cannot be said that the Assessing Officer has not examined the issue and therefore, the question of invocation of Explanation II of Section 263 of the Act does not arise. In the present case, Assessing Officer has duly applied his mind and thereafter, restricted the disallowance to 30%. Merely because the Assessing Officer has not applied the view as taken by the ld.PCIT, it cannot be said that the order passed by the Assessing Officer is erroneous as the view of the Assessing Officer is also one of the possible views and when two possible views are available, then following one view will not make the order passed by the Assessing Officer as an erroneous one.
The decisions relied upon by the Ld.DR for the revenue are not applicable to the facts of the present case and are clearly distinguishable. In none of the cases referred to by ld.DR, it was not a case before the Court / Tribunal which deals with exercise of jurisdiction by the ld.PCIT, while the appeal is pending adjudication before the CIT(A).
In view of the above, the order of ld.PCIT is required to be set aside. However, there is not any valid reason for setting aside the order of Assessing Officer, as the issue is pending for adjudication before ld.CIT(A). However, ld.CIT(A) can always modify, alter or vary the order passed by the Assessing Officer and for that purposes, he has all the powers even to enhance the additions by following the due process of law. Once the issue is already pending for adjudication, it is not appropriate for the ld. PCIT to exercise power in a hurried manner, without verifying the records. There should not be any over-lapping and overstepping of the jurisdiction by the authorities. Once the proceeding before ld.CIT(A) are in session and is deciding the issues as per section 250 / 251 of the Act, then it is not appropriate for the ld.PCIT to exercise powers u/ 263 of the Act. In paragraph 3 of the impugned order ld.PCIT acknowledged the pendency of appeal before the CIT(A) however the objection of the assessee have been rejected by the ld.PCIT, on the pretext that the issue pending adjudication before the CIT(A) is not the same issue for which the power under section 263 was exercised by him as mentioned by the ld.PCIT in Para 3 of his order, which was reproduced hereinabove. In our view the issue raised by the ld.PCIT is similar to that of the issue pending before the Ld. CIT(A). In view of the above we do not agree with the finding recorded by the Ld. PCIT in exercising his power under section 263.
In light of the above, we do not find any merit in the order passed by the ld.PCIT u/s 263 of the Act and therefore, we have no hesitation in allowing the appeal of the assessee. Accordingly, the appeal of the assessee is allowed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court on 11th October, 2022.