ANUSHAKTI CHEMICALS & DRUGS LTD. (FORMERLY KNOWN AS AARTI HEALTHCARE LTD. NOW MERGED INTO AARTI INDUSTRIES LTD.),MUMBAI vs. PR. CIT - RANGE-2, MUMBAI

आदेश / O R D E R महावीर �संह, उपा�य� के �ारा / PER MAHAVIR SINGH, VP:

2 ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 Mumbai-2 vide order No. ITBA/REV/F/REV5/2020- 21/1031251374(1) dated 05.03.2021. The original assessment was framed by the ITO Ward-10(3)(1), Mumbai for the Assessment Year 2010-11 vide his order dated 26.03.2013 under section 143(3)(ii) of the Act. This order was challenged before CIT(A) and consequently before Tribunal and Tribunal in for the Assessment Year 2010-11 vide order dated 24.04.2017 remanded the matter back to the file of the Assessing Officer. The Assessing Officer while giving appeal effect to the order of the Tribunal passed appeal effect order under section 143(3) read with section 254 of the Act vide order dated Nil, the impugned order before CIT(A), which is subject matter of revision under section 263 of the Act by PCIT.

2. Order passed under section 263 is bad in law and needs to be quashed as void ab initio 2.1 On the facts and in the circumstances of the case and in law, the Ld. PCIT has erred in passing the order under section 263 of the Income-tax Act, 1961 ('Act') without following basic principles of natural justice and not granting adequate opportunity of being heard to the Appellant before passing the impugned order.

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 2.2 The Ld. PCIT grossly erred in assuming jurisdiction under section 263 of the Act without appreciating that revision under section 263 cannot be undertaken with regard to the initiation of the penalty.

2.3 The Ld. PCIT grossly erred in initiating proceedings under section 263 of the Act without appreciating that the order of the Ld. Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue.

2.4 The Ld. PCIT grossly erred in initiating proceedings under section 263 of the Act without appreciating that penalty cannot be levied on the ground, which is a debatable ground, and where more than one view is possible and thus the order passed by the Assessing Officer cannot be considered erroneous or prejudicial to the interest of the revenue.

2.5 The Appellant prays that the impugned order be considered as non-est and void-ab-initio on the aforesaid grounds.”

4. At the outset, the learned Counsel for the assessee stated that the original assessment was framed by the ITO, Ward 10(3)(1), Mumbai under section 143(3)(ii) of the Act vide order dated 26.03.2013, wherein penalty under section 271(1)(c) of the Act was initiated for furnishing of inaccurate particulars of income/ concealment of income. This order of the Assessing Officer was challenged before CIT(A) and consequently matter was taken to the ITAT and ITAT in vide order dated 24.04.2017 set aside the assessment to the file of the Assessing Officer. The learned Counsel for the assessee took us through the facts recorded by the PCIT in Para 2,3 & 4, which read as under:-

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 “2. M/s. Anushakti Chemicals and Drugs Ltd. (PAN AAACA35I7H) has filed the return of income for A.Y. 2010-11 on 30.09.2010 declaring Nil total income. The assessment u/s 143(3) of the Income-tax Act, 1961 was completed on 23.03.2013 assessing total income at Rs. 5,97,05,484/-.

3. In the assessment order, it was held that since assessee’s business was discontinued, the lease rental income and manufacturing services income was assessable under the head “income from other sources". Further, since the assessee has failed to prove that the expenses debited to the Profit and Loss account were incurred in relation to these income, no deduction was allowed in respect of manufacturing and other expenses debited to the Profit and Loss A/c. Penalty proceedings u/s. 271(1)(c) of the Income-tax Act, 1961 was also initiated for furnishing inaccurate particulars of income/concealment of income. This assessment order was confirmed by the Ld. CIT(A) vide appellate order no. CIT(A)-22/ITO- 10(3)(1)/lT-140/2013-14 dated 16.01.2015. The Hon'ble ITAT vide its order dated 24/4/2017 had set aside the assessment order to the file of A.O. with the direction to examine the factual matrix and decide the case of the assessee afresh after giving reasonable opportunity to the assessee of being heard.

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 5. The above facts are undisputed by both the sides i.e. the Revenue as well as assessee.

6. On the above facts, the learned Counsel stated that the Revision order passed by PCIT is only on the issue that the Assessing Officer failed to initiate the penalty proceedings under section 271(1)(c) of the Act while framing set aside assessment vide dated 28.12.2018. The learned Counsel for the assessee took us through the assessee’s paper book filed containing pages 1 to 27, wherein, the relevant set aside assessment order is enclosed at pages 18 to 21 and stated that the Assessing Officer has not initiated the penalty proceedings and now, PCIT want to revise this assessment order. According to the learned counsel, the PCIT has wrongly given direction to the Assessing Officer for initiating penalty proceeding under section 271(1)(c) while assuming jurisdiction under section 263 of the Act and he read out Para 9, which read as under:-

9. Therefore, the assessment order passed 143(3) rws 254 of the Income-tax Act, 1961 on dated 28.12.2018 by the Assessing Officer in this case for Assessment Year 2010-11 is treated as erroneous in so far as it is prejudicial to the interest of revenue within the meaning of the clause (a) of explanation (2) below Section 263(1) of the Income-tax Act, 1961 and the same is hereby modified within the meaning of section 263(1) of the Income Tax Act 1961 with a following direction: “The AO is directed to initiate the penalty proceedings under section 271(1)(c) of the Income-tax Act, 1961 for furnishing inaccurate particulars of income as is clear from the facts discussed in the assessment order. Further, the Assessing Officer is also directed to issue penalty notice under section 271(1)(c) in accordance with the provisions of the Income-tax Act, 1961.

6 ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 7. The learned Counsel for the assessee before us stated that by way of revision order, the penalty proceedings under section 271(1)(c) of the Act cannot be initiated and for this, he relied on the decisions of Hon’ble Punjab and Haryana High court in the case of CIT (central), Ludhiana Vs. Rakesh Nain Trivedi (2017) 80 taxmann.com 238 (Punjab & Haryana) and this Tribunal decision in vide order dated 25.10.2017 in the case of Nusrat Mustafa Rasiwala Vs. PCIT. The learned Counsel also relied on the decision of Gujarat High court decision in the case of CIT Vs. Parmanand M. Patel (2005) 278 ITR 3 (Guj).

8. On the other hand, the learned CIT Departmental Representative, Ms. Shailja Rai, however, tried to distinguish these case laws cited by the learned Counsel for the assessee and stated that in the original assessment penalty proceedings under section 271(1)(c) of the Act was initiated. She took us through the original assessment order enclosed in assessee’s paper book at pages 2 to 5 and in Para 9. The Assessing Officer has initiated the penalty proceedings under section 271(1)(c) of the Act vide his order dated 26.03.2013. She stated that the Assessing Officer has erred in not initiating the penalty proceeding while giving the appeal effect or passing a set aside assessment order under section 143(3) read with section 254 of the Act vide order dated 28.12.2018. According to the learned CIT Departmental Representative, this set aside assessment framed by Assessing Officer is rightly revised by PCIT. She also relied on the decision of Hon’ble Madhya Pradesh High court in the case of Addl. CIT Vs. Indian Pharmaceuticals (1980) 123 ITR 874 (MP). Even the Hon’ble Punjab and Haryana High court

7 ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 has not pointed out how the decision of Hon’ble Madhya Pradesh High court is not applicable in this case. In view of the above, the learned CIT DR stated that the PCIT has rightly directed the Assessing Officer to initiate the penalty proceeding while acting under the revision proceedings.

“4. We have heard learned counsel for the parties. 5. After hearing learned counsel for the parties, we find the issue that arises for consideration of this Court in this appeal is could the CIT in exercise of power under Section 263 of the Act hold the ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 order of the Assessing Officer to be erroneous and prejudicial to the interest of the revenue where the Assessing Officer had failed to initiate penalty proceedings while completing assessment under Section 153A of the Act.

"9. Now adverting to the second limb, it may be noticed that the Delhi High Court in judgment reported in Addl. CIT vs. J.K.D.'Costa (1981) 25 CTR (Del) 224 : (1982) 133 ITR 7 (Del) has held that the CIT cannot pass an order under s. 263 of the Act pertaining to imposition of penalty where the assessment order under s. 143(3) is silent in that respect. The relevant observations recorded are:

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 "It is well established that proceedings for the levy of a penalty whether under s. 271(1)(a) or under s. 273(b) are proceedings independent of and separate from the assessment proceedings. Though the expression "assessment" is used in the Act with different meanings in different contexts, so far as s. 263 is concerned, it refers to a particular proceeding that is being considered by the Commissioner and it is not possible when the Commissioner is dealing with the assessment proceedings and the assessment order to expand the scope of these proceedings and to view the penalty proceedings also as part of the proceedings which are being sought to be revised by the Commissioner. There is no identity between the assessment proceedings and the penalty proceedings; the latter are separate proceedings, that may, in some cases, follow as a consequence of the assessment proceedings. As the Tribunal has pointed out, though it is usual for the ITO to record in the assessment order that penalty proceedings are being initiated, this is more a matter of convenience than of legal requirement. All that the law requires, so far as the penalty proceedings are concerned, is that they should be initiated in the court of the proceedings for assessment. It is sufficient if there is some record somewhere, even apart from the assessment order itself, that the ITO has recorded his satisfaction that the assessed is guilty of concealment or other default for which penalty action is called for. Indeed, in certain cases it is possible for the ITO to issue a penalty notice or initiate penalty proceedings even long before the assessment is completed though the actual penalty order cannot be passed until the assessment finalised. We, therefore, agree with the view taken by the Tribunal that the penalty proceedings do not form part of the assessment proceedings and that the failure of the ITO to record in the assessment order his satisfaction or the lack of it in regard to the leviability of penalty cannot be said to be a factor vitiating the assessment order in any respect. An assessment cannot be said to be erroneous or ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 prejudicial to the interest of the revenue because of the failure of the ITO to record his opinion about the leviability of penalty in the case."

12. We are in agreement with the view taken by the High Courts of Delhi, Rajasthan, Calcutta and Gauhati, and express our inability to subscribe to the view of Madhya Pradesh High Court.

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 Aggarwal's case (supra) where judgment of Madhya Pradesh High Court in Indian Pharmaceuticals' case (supra) noticed hereinbefore has been concurred with.

10. Further, we noted from the Judgment of Hon’ble Gujarat High Court in the case of CIT vs. Parmanand M. Patel (2005) 278 ITR 3 (Guj), wherein on identical facts Hon’ble High Court held as under:

“34. As there was a dichotomy between the views expressed by the High Court of Delhi on the one hand and the High Court of Madhya Pradesh on the other, in the case of P.C. Puri v. CIT [1985] 151 ITR 584 (Delhi), the learned Judges constituting the Division Bench expressed a difference of opinion and the matter was referred to a third Judge in terms of section 251 of the Act. The majority view has approved and confirmed the earlier view expressed by the High Court of Delhi in the case of Addl. CIT v. J.K. D' Costa [1982] 133 ITR 71. The learned third Judge while recording the majority opinion has distinguished the reasoning of the Madhya Pradesh High Court in the following manner:

"The fundamental fallacy in the reasoning of the learned Judges of the Madhya Pradesh High Court, with very great respect, is that the wide meaning that they attribute to the word 'assessment' is not borne out by the context. Take a simple illustration. The Income-tax Officer frames the assessment. But he does not initiate penalty proceedings. The Commissioner thinks that the order is erroneous and prejudicial to the revenue. He cancels the assessment and directs a fresh assessment even though with the assessment as such there is nothing wrong.

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 Income has been correctly computed and the tax has been calculated at the correct rate. But, since in the course of the proceedings, the Income-tax Officer has not issued notice of penalty proceedings, the entire assessment has to go. The Commissioner himself cannot initiate the penalty proceedings because they have to be commenced 'in the course of any proceedings, in connection with the regular assessment' by the Income-tax Officer, if he is 'satisfied' 'that any assessee has furnished under section 212 an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue' under section 273(a). Section 275 enacts a bar of limitation for imposing penalty. Penalty proceedings can be commenced only on the completion of the assessment proceedings. They must be concluded within two years from commencement. This shows that the Legislature attaches the greatest importance to the time-limit of two years after which no order for penalty can be passed. But the Commissioner by cancelling the assessment and directing a fresh assessment will open the door to the Income-tax Officer to start everything de novo. Even then the Income-tax Officer may say: 'I find no case for the imposition of penalty.' With this the Commissioner may disagree. He will again cancel the assessment and direct a fresh assessment. Every time the assessment will have to be cancelled. Because, without a regular assessment, penalty proceedings cannot be commenced.

Is assessment more important or penalty proceedings? Of central importance is the assessment. That is the cornerstone of the Act. Cancelling an assessment wholesale has far-reaching consequences, as was pointed out in D' Costa: 'Such a wholesale cancellation of the assessment with a direction to make a fresh assessment is called for only in cases where there is something totally or basically wrong with the assessment which is not capable of being remedied by amendments to the assessment order itself.' (D' Costa at page 12 of 133 ITR).

ITAs No. 639/Mum/2021 Anushakti Chemicals & Drugs Ltd.; AY 10-11 The view contended for would require much to be written into the section which is not there, would complicate its operation and would lead to practical difficulties. The consequences of accepting the interpretation put by the revenue will lead to harsh results [CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC)]. This may well lead to tax laws capable, if unchecked, of great oppression. It will be an 'intolerable inquisition', to use an expressive phrase of H.H Monroe, if penalty proceedings can be continued even after the expiry of the original limit of two years (Intolerable Inquisition? Reflections on the Law of Tax, Hamlyn Lectures, 33 series).

The object of the construction of a statute being to ascertain the will of the Legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore, a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted (Owen Thomas Mangin v. IRC [1971] AC 739, 746 (PC) per Lord Donovan)." (p. 609)

11. In view of the above, we are of the view that the CIT cannot set aside the Assessment Order for the sole purpose of initiating penalty proceedings in exercise of revisional jurisdiction. Hence, we quash the revision order passed by the PCIT and allow the appeal of the assessee.