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Facts
The assessee, a hospital owner, filed his return of income. During a survey u/s 133A, he declared additional income of Rs. 40 lakhs. The Assessing Officer (AO) accepted this income and completed the assessment at normal rates. The Commissioner (CIT) initiated revision proceedings u/s 263, holding the AO's order erroneous as the surrendered income should have been taxed at a higher rate u/s 115BBE.
Held
The Tribunal held that the CIT had failed to demonstrate that the additional income was not from the assessee's professional income or that it was from other sources requiring higher tax rates. The Tribunal also noted that the AO had inquired about the issue and accepted the assessee's explanation, and the CIT could not substitute his view for the AO's unless the AO's view was unsustainable.
Key Issues
Whether the CIT was justified in invoking Section 263 to revise the assessment order when the AO had already considered and accepted the assessee's surrendered income at normal rates?
Sections Cited
133A, 143(2), 143(3), 142(1), 263, 115BBE, 69B
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Income Tax Appellate Tribunal, CHANDIGARH
Before: SHRI RAJPAL YADAV & SHRI MANOJ KUMAR AGGARWAL
PHYSICAL HEARING आदेश/ORDER PER RAJPAL YADAV, VP
The present appeal is directed at the instance of the assessee against the order of ld. Commissioner of Income Tax [in short ‘the CIT’] dated 31.03.2023 passed for assessment year 2018-19.
ITA 379/CHD/2023 A.Y. 2018-19 2
The Registry has pointed out that appeal is time barred by 9 days. After perusal of the application for condonation of delay, we are satisfied that assessee has been prohibited by sufficient reason for not filing the appeal within the time limit. Hence, the delay is condoned.
Originally, assessee has raised six grounds of appeal but thereafter, he has filed an application for permission to raise two additional grounds of appeal. In brief, grievance of the assessee in all these grounds is that ld. CIT has erred in taking cognizance u/s 263 of the Income Tax Act and thereby setting aside the assessment order for passing afresh assessment order. In the additional ground of appeal, the additional plea raised by the assessee is that ld. CIT has enhanced the scope of 263 order beyond the Show Cause Notice issued. As far as admission of additional ground of appeal is concerned, we find it is one of the peripheral arguments to the central point for judging the question, whether ld. CIT has rightly taken action u/s 263 or not. Therefore, considering the issues submitted in these grounds, we admit that for consideration on merit, we are ITA 379/CHD/2023 A.Y. 2018-19 3 fortified by the judgment of Hon'ble Supreme Court in the case of NTPC Ltd. Vs CIT reported in 229 ITR page 383 wherein it has been held that if some jurisdictional issue goes to the root of the cause and affects the ultimate tax liability of an assessee, then such an additional ground could be allowed to be raised.
4. The brief facts of the case are that assessee has filed his return of income on 31.10.2018 declaring income of Rs.85,52,390/-. The case of the assessee was selected for scrutiny assessment and notice u/s 143(2) was issued and served upon the assessee. It emerges out from the record that assessee, at the relevant time was running a hospital in the name and style of M/s Gulzar Bone and Joint Hospital at Malerkotla. In other words, assessee derived income from medical profession. A survey u/s 133A was conducted at the hospital on 23.03.2018. During the course of survey, assessee was confronted with certain loose papers found in the survey. He declared an additional income of Rs.40 lacs which would take care of any shortcomings, if unearthed in such documents and ultimately the income of Rs.85,52,390/- was offered for taxation.
ITA 379/CHD/2023 A.Y. 2018-19 4 The ld. AO has issued questionnaire u/s 142(1). He discussed the issue with the Tax Consultant of the assessee and thereafter accepted the return in scrutiny assessment passed on 26.02.2021 u/s 143(3) of the Act.
The ld. CIT perused the assessment record and formed an opinion that it is erroneous and has caused prejudice to the interests of Revenue. The reason assigned by the ld. CIT is that additional income disclosed by the assessee at Rs.40 lacs is to be charged to tax u/s 115BBE because this income is assessable u/s 69B of the Income Tax Act. In other words, only grievance of the ld. Commissioner for treating the assessment order as erroneous was that AO has not charged higher rate of tax on the alleged surrendered income. The copy of the Show Cause Notice issued u/s 263 is available on page No. 1 and 2 of the Paper Book. This notice was issued on 01.03.2023. The reasons assigned by the ld. Commissioner for taking action u/s 263 are contained in paragraph No. 3 and 4 of this notice which read as under : “03. On perusal of the records, it has been observed that the tax was calculated at normal rates on the income surrendered during the course of survey action on ITA 379/CHD/2023 A.Y. 2018-19 5 account of Professional Receipts not recorded in the books of accounts. However, the income surrendered during the course of survey action should be treated as assessee is in possession of unexplained money and treatment of tax liability thereon should be under the provision of section 69B of the Income Tax Act, 1961 and tax was to be calculated u/s 115BBE of the Act on the said surrendered income.
In light of the above, it is evident that the assessment order passed on 26.02.2021 u/s 143(3) of the I.T.Act, 1961 is apparently considered erroneous in so far as in judicial to the interest of the revenue within the meaning of section 263of the I.T.Act, 1961.”
5.1. The ld. Commissioner, thereafter, issued one more notice on 10.03.2023 whose copy is available on page No. 3 and 4. In this notice, it has been alleged that it is in continuation of the earlier notice issued on 01.03.2023 but in this notice, ld. CIT has called for additional information on three counts, namely; (a) Brief note on activities of the assessee in the year under consideration, (b) Brief note exhibiting how assessee conducts his profession and flow of activities, (c) A Monthly Chart of cash flow and income recognized during the year.
5.2 All these details were submitted by the assessee, but ld. Commissioner was not convinced and he treated the assessment order as erroneous which has caused prejudice to the interests of the Revenue. The relevant part of the discussion made by the ld. Commissioner reads as under :
ITA 379/CHD/2023 A.Y. 2018-19 6 5.2.1 Perusal of the record reveals that during the survey on 23.03.2018, the assessee surrendered additional income of Rs.40,00,000/- which was confirmed in writing by way of letter dated 23.03.2018. On the date of survey i.e. on 23.03.2018, cash at the business premises was inventorized which showed cash balance of Rs.22,100/- only. On the other hand, monthly cash flow shows assessee claimed to have huge cash balance on month to month or on day to day basis. 5.2.2 The month-wise cash flow statement reveals that at the beginning of April, 2017 cash balance was Rs.3,22,315/-, which went down to Rs.51,884/- on 1st May, 2017. However, thereafter, it has shown steady increase and as on 01.02.2018, it was Rs.50,52,219/- and as on 01.03.2018, it was Rs.49,49,195/- as per cash flow statement given below:- x x x 5.2.3 It is also seen that the assessee has been depositing cash in bank on regular basis which represented a relatively low percentage of receipts shown in the chart. The steady increase in the cash balance, over the period of time, is unusual and unconventional in the case of a professional like the assessee. This aspect has not at all been examined by the AO. It is improbable that assessee would have to carry heavy cash balance of Rs.15 lac to 25 lac in the first half of the Financial Year and 25 lac to 50 lac in the later half of the Financial Year. Therefore, it appears that as per the cash flow chart submitted by the assessee, there was huge availability of cash with the assessee on the day of survey, which would be somewhere around a figure of Rs. 50 lacs approximately. This definitely is unusual when compare to balance of Rs.51,884/- as on 1st May, 2018. 5.2.4 It is further seen that assessee had paid advance tax during the F.Y. 2017-18 of Rs.10,50,000/- only by the date of survey i.e. 23.08.2018 and by then all due dates of payment of advance tax were over. This advance tax was sufficient to cover tax on taxable income in the rage of around Rs. 35 lacs to Rs. 40 lacs. It is obvious that all these facts do not indicate usual business/professional phenomenon. This unusual phenomenon has not at all been examined by the Assessing Officer. These facts also raise concerns and doubts about the correctness of books of accounts of the assessee viz-a-viz subsidiary documents like vouchers, receipts etc., which in the opinion of the undersigned, AO does not seem to have examined. 5.2.5 In the considered view of the undersigned, the above unusual factual pattern makes the difference, which remained to be examined. The courts have also recognized that single significant fact can make difference in arriving at the conclusion in the given facts and circumstances. This is also true for examining application of case laws, if any, relied upon by the assessee viz-a- viz factual matrix obtaining in a case. 5.2.6 It has been pointed out that the assessee has shown availability of huge cash as per the cash flow statement, a scan copy of which has been captured
ITA 379/CHD/2023 A.Y. 2018-19 7 earlier. The unusual and strange claim of huge cash availability with the assessee does not meet the eyes. 5.2.7 It is also seen from the record that the assessee has got some loans from certain parties. Further, bank interest has been debited to Profit and Loss Account on term loan and CC limit. No prudent man would keep such huge cash on one hand and pay interest on the other. 5.2.8 Since the Assessing Officer has not conducted any enquiries in relation of the aforesaid facts and circumstances having bearing on the assessment, the assessment order passed by the AO suffers from the error as well as prejudice. In this way, twin conditions get satisfied. The Assessing Officer has accepted the assessee's version without application of mind and ascertaining the actual position. In the factual background, it cannot be said that assessee has taken one of the possible views. Even in the submissions, assessee has not been able to demonstrate that the Assessing Officer has taken a permissible view. The discussion made above clearly reveal that the Assessing Officer has passed the order, without making enquiries or verification which should have been made. In this regard, reliance is placed on explanation (2) below section 263(1). Since, reliance is placed on explanation, it is stated that same would be applicable retrospectively. However, in our case, this issue of retrospectivity would not stand in a way as the relevant year under consideration is A.Y. 2018-19 & explanation was inserted by Finance Act, 2015 w.e.f. 01.06.2015. Therefore, invoking of jurisdiction is justified and the case laws prior to insertion of explanation (2) will not be applicable even if explanation is treated as perspective in nature. 5.2.9 In view of the above, it is evident that the Assessing Officer has not examined vital facts highlighted above having significant bearing on taxability of additional income declared in survey and claim that these represented regular business income. There is no question of Assessing Officer taking possible view. Legal position with regard to onus is clear that a particular income is from a source is on the assessee and not on the department. Therefore, the twin conditions get satisfied and therefore, the assessment would fall in the category of erroneous and in so far as prejudicial to the interest of the revenue.”
5.3 The ld. counsel for the assessee, while impugning the order of the ld. CIT took us through the statement of the assessee recorded during the course of survey and submitted as to how assessee has disclosed the alleged additional income of ITA 379/CHD/2023 A.Y. 2018-19 8 Rs.40 lacs. Thereafter, he took us through questionnaire issued by the AO u/s 142 of the Income Tax Act whose copy is available on page No. 26 to 34. A perusal of this questionnaire would reveal that ld. AO has called for various details from the assessee on 30 counts and at Sr.No. 27, he has called for explanation of the assessee as to why higher rate of tax should not be applied on the assessee. This question read as under :
“27 During the course of survey, you had surrendered Rs. 40 Lakh by surrender letter dated 23.03.2018, on account of professional income. Kindly give details of treatment of the surrender in your books of accounts. Also submit the details of tax paid on the surrendered additional income. Kindly show cause that why the surrendered amount should not be taxed as per the provisions of Section 115BBE of the Income Tax Act.”
5.4 The assessee has given a detailed reply whose copy is available at page No. 35 to 40 of the Paper Book. The ld. counsel for the assessee drew our attention towards reply to this questionnaire on page No. 39 of the Paper Book. He emphasized that in the Show Cause Notice dated 01.03.2023, the ld. CIT has confronted the assessee as to why a higher rate of taxes be not applied u/s 115BBE on the surrendered income. In the subsequent notice, he has just called for certain additional information demonstrating how assessee is conducting his professional activities. A perusal of paragraph No. 5.2.3 and ITA 379/CHD/2023 A.Y. 2018-19 9 5.2.4 of the impugned order would reveal that ld. CIT has drawn undue reference of certain facts which were neither examined by himself nor cross-verified. This is only with a view to draw an adverse inference. These are not conclusive facts determined by the ld. CIT for drawing any inference against the assessee. More so, such aspects were never confronted to the assessee by way of a Show Cause Notice. Therefore, this finding is contrary to the record and without giving any Show Cause Notice to the assessee.
The ld. CIT DR, on the other hand, relied upon the order of the ld. CIT. He pointed out that additional income declared by the assessee ought to have been taxed at a higher rate and by not charging higher rate of taxation, AO has committed an error which deserves to be rectified by exercising powers u/s 263. He also made reference to the decisions referred by the ld. CIT in the impugned order.
We have duly considered the rival contentions and gone through the record carefully. Before we embark upon an enquiry on the facts and issues agitated before us to find out whether the action u/s 263 of the Act, deserves to be taken against the ITA 379/CHD/2023 A.Y. 2018-19 10 assessee or not, it is pertinent to take note of this section. It reads as under:-
“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
ITA 379/CHD/2023 A.Y. 2018-19 11 Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120;
(b) “record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner;
(c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal.
(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.
(3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during
ITA 379/CHD/2023 A.Y. 2018-19 12 which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.”
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 is erroneous in so far 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 ITA 379/CHD/2023 A.Y. 2018-19 13 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 annul 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.
A perusal of sub-clause (c) of the above would contemplate that if any order, which is subject matter for revision under section 263 is challenged in appeal, then, on the items which are subject matter of appeal, no power under section 263 could be exercised by the ld. Commissioner. We may elaborate further, for example- an assessment order was passed, it contains five issues, which were challenged before the ld. CIT(A), but ld. Assessing Officer failed to look into few issues, which may arise from the record, then inspite of the assessment order being challenged before the ld. CIT(A), the ld. Commissioner would have jurisdiction on such items, which are not subject matter of appeal in that assessment order.
ITA 379/CHD/2023 A.Y. 2018-19 14 10. 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. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analyzed in detail various authoritative pronouncements including the decision of Hon’ble Supreme Court in the case of Malabar Industries 243 ITR 83 and has propounded the following broader principle to judge the action of CIT taken under section 263. (i) The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled.
(ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted.
(iii) An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous.
ITA 379/CHD/2023 A.Y. 2018-19 15 (iv) If the order is passed without application of mind, such order will fall under the category of erroneous order.
(v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law.
(vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO.
(vii) The AO exercises quasi-judicial power vested in him and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion.
(viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction.
ITA 379/CHD/2023 A.Y. 2018-19 16
(ix) If the AO has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee, the decision of the AO cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard.
In the light of above, if we examine the facts of the present case, then it would reveal that no concrete information was discovered during the course of survey exhibiting that assessee has undisclosed income. The reference to loose paper has never been conclusively confronted to the assessee. During the process of survey, assessee himself declared additional income for taking care of any shortcomings, if discovered in his accounts. He has duly disclosed in the statement recorded u/s 133 at the time of survey that this additional income is also his professional income. We can make reference to the question and answer of his statement, which reads as under : Q8. Please produce books of accounts maintained by you.
ITA 379/CHD/2023 A.Y. 2018-19 17 Ans. The books of accounts are maintained in tally by our part-time accountant. As per discussions with the account, the books are incomplete. Q9. Please state current year income liable to advance tax. Ans. My current year income is near about 85 lakh from all the sources on which I am liable to deposit advance tax. Q10. Please state the amount of advance tax instalments paid up to 15.03.2018. Ans. I have paid a sum of Rs: 10,50,000/- on account of advance tax till 15.03.2018. Q11. As per your above statements the books of accounts are incomplete, Please state why the amount of advance tax falling short has not been deposited? Ans. I have filed my return of income of AY 2017-18 at Rs: 45 lakh approximately. For the current year, I hereby surrender a sum of Rs 40 lakh towards my professional income of the current year on which I undertake to deposit advance tax on or before 28.03.218. This surrender is made to purchase peace of mind and to avoid litigation. Q12. I am showing some loose papers bearing Sr. No. 1 to 48 please state the contents of the same. Ans. These loose paper as mentioned above are made of day to day regular expenses income incurred for professional purposes in the current year. I will show the verifications of those papers in books of accounts. However to cover up any leakage, I had already surrendered a sum of Rs: 40 lakh in additions to the return of income filed for the AY 2017-18.” 11.1 Thus, ld. CIT, nowhere demonstrated as to how this income was not out of his professional income. There was no material discovered which has been referred in the impugned order by the ld. CIT exhibiting the income from other source possessed by the assessee which can be brought to tax u/s 69, 69A and 69B of the Act. Apart from all these issues, we have taken cognizance of questionnaire issued by the AO u/s 142(1) as well as reply filed by the assessee to such questionnaire. The ITA 379/CHD/2023 A.Y. 2018-19 18 AO has asked a specific question on this point which has been replied by the assessee, thereafter, AO has accepted that. It is true that much discussion is not available in the assessment order on the issue but the mode and manner of passing an assessment order is within the domain of the AO. Assessee does not have any control over this. It is pertinent to note that it would be always an ideal situation if discussion is being made in the assessment order because higher Appellate Authority or Revisional Authority could appreciate as to how AO has applied his mind on the given details but if such a finding is not being recorded by the AO, then it is to be inferred from the relevant material available on the record, namely in this case a questionnaire was issued, reply was submitted on the specific point, then it is to be construed that this aspect must have been gone into by the AO before accepting the claim of the assessee and charging normal rate of tax. It is one of the possible view and therefore, it is not justifiable at the end of the ld. CIT to take action u/s 263 of the Act. Accordingly, we allow the appeal
ITA 379/CHD/2023 A.Y. 2018-19 19 of the assessee and quash the order passed u/s 263 by the ld. Pr. CIT.
In the result, appeal of the assessee is allowed.