CD EQUIFINANCE PRIVATE LTD.,KOLKATA vs. PCIT-1, KOLKATA

1. This appeal filed by the assessee pertaining to the Assessment Year (in short “AY”) 2017-18 is directed against the order passed u/s 263 of the Income Tax Act, 1961 (in short the “Act”) by ld. Pr. Commissioner of Income-tax-1, Kolkata [in short ld. “PCIT”] dated 25.03.2022 which is arising out of the assessment order framed u/s 143(3) of the Act dated 27.12.2019.

Subsequently, ld. PCIT called for the assessment records and after examining the same issued the following show cause notice u/s 263 of the Act to the assessee: “Whereas the undersigned had called for and examined the record of your case and it is considered that the impugned assessment order passed u/s 143(3) of the I T Act, 1961 by the DCIT, Circle-7(1), Kolkata on 27.12.2019 for A.Y. 2017-18 is, prima facie, erroneous in so far as it is prejudicial to the interests of the revenue for the following reasons: Scrutiny of the assessment records revealed that the assessee company had claimed written off Inventory of Rs.4,54,00,000/- in the Profit & Loss. It is not very clear whether it pertains to Profit & Loss account or capital in nature. As the debentures treated as Non performing Investment and has been written off by the assessee company and it is still showing in the DEMAT statement of the assessee company. Omission to do so, resulted in under assessment of the income of the assessee by Rs.254,00,000/-.

The AO has passed the impugned assessment order without any application of mind nor conducting any enquiries or verifications which should have been made in this case.

Having regard to the facts and circumstances of the case and in law and in accordance with the provisions of Sec. 263(1) of I T Act, 1961 you are hereby given an opportunity of being heard to show cause as to why the impugned assessment order passed u/s 143(3) of the I T Act, 1961 by the DCIT, Circle-7(1), Kolkata on 27.12.2019 for A.Y. 2017-18should not be held as erroneous in so far as it is prejudicial to the interests of the revenue. You may accordingly furnish your written submissions u/s 263(1) of I.T. Act, 1961 by Page 3 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. 21.03.2022 in this regard, elaborating and/or evidencing your contentions/submissions. Considering the pandemic situations arising due to COVID-19, physical attendance is not considered necessary and you are requested to make written submissions with necessary details through E-mail ID: kolkata.pcit1@incometax.gov.inand it will be treated as compliance to this notice u/s.263(1).”

Extracts of the Financial Statements for FY 2015-16 2. Audited Financial Statements for FY 2016-17 3. Notice dated 13.08.2019 issued u/s 142(1) by the DCIT, Circle 7(1), Kolkata along with the replies dated 26.08.2019 and 20.12.2019 furnished in response thereto which inter alia included the relevant documents/details furnished in support of the basis for valuation of the debentures of M/s Amtek Auto Ltd as on 31.03.2017 which inter alia included: -Contract Note evidencing purchase of debentures of M/s Amtek Auto Ltd; -Sample copies of complaints filed by the company with SEBI, Department of Economic Affairs, Ministry of Finance, M/s Amtek Auto Ltd and its auditor for default in redemption and payment of outstanding interest of the Debentures; -Complaint No. SEBIP/HY16/000084/1 dated 25th July 2016 lodged with the SEBI regarding non-payment of redemption proceeds and interest thereon.

Reply dated 21.03.2022 furnished in response to the above SCN inter alia including the following documents: -Notice issued u/s 142(1) of the Act by the AO along with the replies furnished thereto; -Copy of the Public Announcement dated 29th July 2017 made by M/s Amtek Auto Ltd declaring insolvency which further corroborated the valuation exercise undertaken by the company as on 31.03.2017. Extracts of audited financial statements for FY 2021-22 evidencing that the recoveries/receipt upon completion of insolvency proceedings was credited in the P&L A/c and offered to tax in that relevant year.

Chainrup Sampatram Vs. CIT (24 ITR 481) [SC] 8. Investment Ltd. Vs. CIT (77 ITR 533) [SC] 9. CIT Vs. British Paints India Ltd. (54 Taxman 499) [SC] 10. United Commercial Bank Vs. CIT (106 Taxman 601) [SC] 11. CIT Vs. J L Morrison & Co Ltd (46 taxmann.com 215) [Cal HC] 12. Adani Wilmar Ltd Vs. DCIT (81 taxmann.com 459) [ITAT Ahd] 13. Britannia Industries Ltd. Vs. PCIT (ITA No. 150/Kol/2021) [ITAT Kol] 8. Per contra ld. D/R vehemently argued supporting the detailed finding of ld. PCIT and the decisions referred in light therein.

We have heard rival contentions and perused the records placed before us. The revisionary proceedings carried out by ld. PCIT and the directions given therein setting aside the order of ld. AO to be framed afresh are in challenge before us. The transaction in question is writing off of inventory in the form of non-convertible debentures at Rs. 4,54,00,000/-. We observe that during the financial year 2015-16 the assessee purchased debentures of Rs. 5 Cr. from M/s. Amtek Auto Ltd. On the due date the issuer Page 6 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. company defaulted and subsequently went into liquidation. As stated by the ld. Counsel for the assessee that after making hard efforts the assessee was able to recover only Rs. 46 lakh and the remaining amount was written off as an expenditure in the profit & loss account. In this regard, the submissions made by the assessee before ld. PCIT are worth notable: “6. In Para 2 of the Show Cause Notice, it has been alleged that it is not clear that such write-off is on revenue account or capital account. According to your goodself such write-off was made on account of Non- Performing Investment and therefore the same deserves to be disallowed. The company submits that the above allegation is factually erroneous and unsustainable 7. The company submits that it is a trader in shares & securities for many years now. In all the past income-tax assessments as well as the present income-tax assessment for AY 2017-18, the company has been assessed as a trader in shares & securities. Accordingly the profit/loss arising from such business has been treated to be in the nature of revenue income/loss and thus assessable under the head ‘Business'. In the relevant year also the company had duly disclosed the debentures held in M/s Amtek Auto Ltd as and by way of 'Inventory'. Perusal of Note No. 10 to the Financial Statements makes it amply clear that such debentures were held as 'inventory' and therefore the valuation loss / write-off arisen at the year-end was in the revenue field and not capital. Attention is further invited to Note No. 2.25 of the Financial Statements from which it is again abundantly clear that the company had held these debentures as 'stock-in-trade'. Even in the Profit & Loss Account, the purchase and valuation of these debentures were routed through 'Inventory' [Refer Note No. 15 of Financial Statements], This issue was specifically enquired into by the AO as well in the course of assessment and the company vide reply dated 20th December 2019 had explained the same. In the circumstances your allegation that it is not clear that these debentures were held in capital account or as stock-in-trade is wholly unjustified on facts and in law.

The company had acquired the debentures of M/s Amtek Auto Ltd in the regular course of business on 19th May 2015. The said debentures fell due on 20th September 2015 and the said issuer company failed to redeem the debentures and also defaulted in Page 7 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. payment of interest. The company wrote several communications/letters to the issuer company. Inspite of several follow-up, the issuer company failed to redeem the debentures. The assessee thereafter filed a complaint with the Chairman, SEBI. The company received an intimation from SEBI that its complaint was under resolution and that it shall be informed in due course. During the relevant year, the company became aware that the issuer company, M/s Amtek Auto Ltd was undergoing insolvency proceedings in March 2017. This fact stood corroborated by the public announcement made by the company on 24th July 2017, copy of which is enclosed at Annexure - 3. Pursuant to the liquidation proceedings, the company had received sum of Rs.46,00,000/- in part settlement of its redemption proceeds from the issuer company in FY 2016-17. Having regard to the foregoing facts and particularly that the company had gone into liquidation, the NRV of the debentures as on 31.03.2017 was ascertained at NIL and hence the differential sum of Rs.4,54,00,000/- was written off on account of valuation loss arisen on the stock-in-trade. 13. ……………..In view of above cited judgments of the Hon’ble Supreme Court on this very same issue, the company submits that its method of valuation of the closing stock of debentures on the principle of cost or market value, whichever is lower, is in accordance with law and therefore the valuation loss was rightly claimed as deduction from the profits of the business. In the circumstances the SCN issued u/s 263 of the Act is wholly untenable in law.

The company has thus duly met your specific objection raised in the SCN with adequate explanation and the facts set out above clearly demonstrate that there is no infirmity in the claim of valuation loss of Rs.4,54,00,000/- in as much as there is infirmity or error in the order of the AO which rendered the impugned order to be erroneous and prejudicial to the interests of the Revenue.

For the reasons set out above, it is prayed that the proceedings so initiated u/s 263 of the Act be dropped and/or filed. We request you to take the above on record. In case your goodself is not agreeable to the above submissions, then an opportunity of personal hearing may kindly be afforded to the company.”

We further find that the provisions of Section 263 of the Act have direct bearing on this issue and the same is reproduced below: “263(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 144A; (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 authorized by the Board in this behalf under section 120; I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. (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."

On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pendency of those proceedings. On an analysis of the record and of the order passed by the Assessing Officer, he formed an opinion that such an order Page 10 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. is erroneous insofar as it is prejudicial to the interests of the Revenue. By this stage the learned Commissioner was not required the assistance of the assessee. Thereafter the third stage would come. The learned Commissioner would issue a show cause notice pointing out the reasons for the formation of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annule the order of the Assessing Officer. He may enhance the assessed income by modifying the order. He may set aside the order and direct the Assessing Officer to pass a fresh order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263.

Before we advert to the facts and law involved in this issue before us, let us revisit the law governing the issue before us. The assessee has challenged in the first place, the very usurpation of jurisdiction by ld. PCIT to invoke his revisional powers enjoyed u/s 263 of the Act. Therefore, first we have to see whether the requisite jurisdiction necessary to assume revisional jurisdiction is existing in this case before the PCIT rightfully exercises his revisional power. For that, we have to examine as to whether in the first place the order of the Assessing Officer found fault by the Principal CIT is erroneous as well as prejudicial to the interest of the Revenue. For that, let us take the guidance of judicial precedence laid down Page 11 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. by the Hon'ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions need to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the ld. PCIT. The twin conditions are that the order of the ld. AO must be erroneous insofar as prejudicial to the interests of the Revenue. In the following circumstances, the order of the ld. AO can be held to be erroneous order, that is (i) if the ld. AO’s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii) Ld. AO’s order is in violation of the principle of natural justice; or (iv) if the order is passed by the ld. AO without application of mind; (v) if the AO has not investigated the issue before him; [because AO has to discharge dual role of an investigator as well as that of an adjudicator] then in aforesaid any event the order passed by the ld. AO can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the ld. AO can be termed as prejudicial to the interests of Revenue. When this aspect is examined, one has to understand what is prejudicial to the interests of the Revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interests of the revenue” has to be read in conjunction with an erroneous order passed by the ld. AO. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of ld. AO cannot be treated as prejudicial to the interests of the Revenue. When the ld. AO adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the ld. AO has taken one view with which the ld. PCIT does not I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue “unless the view taken by the ld. AO is unsustainable in law”.

Now, examining the facts of the instant case in light of the provisions of Section 263 of the Act and the settled judicial precedence, the first hurdle which ought to have been cleared by ld. PCIT before carrying out revisionary proceedings are that whether the said transaction has been examined by ld. AO during the course of assessment proceedings and secondly, whether a plausible view has been taken by him. We find that notice u/s 142(1) of the Act was issued by ld. AO on 13.08.2019 to which the assessee replied on 19.10.2019 and at point 11 of the annexure attached to the notice, the assessee was required to submit explanation regarding larger amount of refund claimed in the revised return as lesser taxable income shown in the revised return. In reply thereby on 20.12.2019 the assessee filed the details regarding the transaction of debentures purchased from M/s. Amtek Auto Ltd. and the reason for closing valuation of the debentures being considered NIL. Copies of correspondence between the assessee and SEBI were also filed which are placed at page 52 to 64 of the paper book. These details were placed before ld. AO who has thoroughly examined and after being satisfied that since M/s. Amtek Auto Ltd. has gone into liquidation and was unable to pay the balance sum of Rs. 4,54,00,000/- to the assessee, accepted the assessee’s claim of write off of the said amount. It is also worth noting that Note no. 2.25 of the audited balance sheet states the said transaction and the writing off of Rs. 4.54 Cr. in the statement of profit & loss account which was held Page 13 of 15 I.T.A. No.: 164/Kol/2022 Assessment Year: 2017-18 CD Equifinance Private Limited. as stock-in-trade by the assessee. During the course of assessment proceedings ld. AO asked the assessee to specifically explain the basis of valuation of the debentures of M/s. Amtek Auto Ltd. to which the company replied on 20.12.2019 furnishing the complete details. Ld. AO after being satisfied with the details and explanations passed the order u/s 143 of the Act drawing no adverse inference in relation to claim of valuation loss arising on writing off of the debentures held as stock-in-trade.

In the result, the appeal filed by the assessee is allowed. Kolkata, the 1st November, 2022. Sd/- Sd/- [Sonjoy Sarma] [Manish Borad] Judicial Member Accountant Member Dated: 01.11.2022 Bidhan (P.S.)