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Facts
The assessee is in appeal against the CIT's order passed under Section 263 of the Income Tax Act. The CIT had revised an assessment order passed by the AO, alleging it was erroneous and prejudicial to the interest of revenue.
Held
The Tribunal held that the CIT erred in taking cognizance under Section 263. The assessment was initially for limited scrutiny, and the CIT's assumption that it was a complete scrutiny was based on wrong facts, leading to erroneous conclusions.
Key Issues
Whether the CIT's order under Section 263 was justified when the assessment was for limited scrutiny, and the CIT's assumption of complete scrutiny was factually incorrect. Whether the AO's assessment order was erroneous and prejudicial to revenue.
Sections Cited
263, 143(3), 143(2), 142(1), 127, 144A, 120
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DIVISION BENCH, ‘B’ CHANDIGARH
Before: SHRI RAJPAL YADAV & SHRI MANOJ KUMAR AGGARWAL
The assessee is in appeal before the Tribunal against the order of the ld. Commissioner of Income Tax [in short ‘the CIT’] dated 10.03.2022 passed U/S 263 of the Income Tax Act, 1961 in assessment year 2017-18.
2. Originally the assessee has raised two grounds of appeal wherein he has pleaded that ld. CIT has erred in taking cognizance u/s 263 of the Income Tax Act and thereby setting A.Y.2017-18 2 aside the assessment order passed by the AO u/s 143(3) of the Income Tax Act dated 13.12.2019.
The assessee, thereafter, filed an application pleading therein that the additional ground of appeal be permitted to be raised by the assessee. In this additional ground of appeal, assessee has submitted that the original notice was issued u/s 143(2) for a limited scrutiny of assessee's return, however later on, the scope of this assessment has been enhanced without taking due approval from the Competent Authority and such enlargement of scope is in violation of Instruction No. 5/2016 issued by the CBDT. The ld. Commissioner found error in this enlarged scope of assessment. Since it is a jurisdictional issue, it will go to the root of the cause of dispute and will ultimately affect the taxability of assessee, therefore, on the strength of Hon'ble Supreme Court decision in the case of NTPC Ltd. Vs CIT reported in 229 ITR page 393, we admit this additional ground of appeal for adjudication on merit.
The brief facts of the case are that assessee has filed his original return of income on 19.12.2017 declaring total income of Rs.25,54,750/-. This return was processed u/s 143(1). A.Y.2017-18 3 Later on, case of the assessee was selected for limited scrutiny and a notice u/s 143(2) was issued by ITO, Ward – 3, Sirsa and copy of this notice issued u/s 143(2) is available at page No. 29 of the Paper Book. The relevant part of this notice read as under : “………has been selected for limited scrutiny and following issues have been identified for examination : (i) Unsecured loans (ii) Credit Card payments “
3.1 Some-how, after some time, on 29.03.2018, a fresh Show Cause Notice has been issued u/s 143(2) by ITO, Ward-4, Panchkula. Though in this notice also, same those very issues have been mentioned i.e., assessment was selected for a limited scrutiny for two items, namely, unsecured loans and Credit Card payments. The AO, thereafter, passed the assessment order u/s 143(3) on 13.12.2019 and accepted the return of the income.
The ld. Commissioner has gone through the assessment record and formed an opinion that assessment order is erroneous which has caused prejudice to the interest of revenue. The basic grievance of the ld. CIT was that AO has A.Y.2017-18 4 not conducted due enquiry about opening balance in the capital account and credit card payments. The ld. CIT further made reference about discrepancy in the opening capital balance shown by the assessee vis-à-vis the closing capital balance shown in the earlier Accounting Year, relevant for Financial Year 2016-17.
The ld. counsel for the assessee while impugning orders of Revenue Authorities raised many fold of submissions. In his first fold of submission, he contended that original return was filed by the assessee at Ward-3, Sirsa. This return was selected for scrutiny and a valid notice u/s 143(2) was issued by ITO Kalanwli, Ward – 3, Sirsa. This notice has not culminated the proceeding. It is not ascertainable whether case of the assessee was transferred u/s 127 from ITO, Ward- 3, Sirsa to ITO Ward-4, Panchkula. A perusal of the record would suggest that a fresh notice on 29.09.2018 has been issued by ITO, Ward-4, Panchkula. Thus, the ld. counsel for the assessee has submitted that the assessment order passed by the ITO, Ward-4, Panchkula is not valid and notice u/s 263 could have not been issued on such an assessment order. The A.Y.2017-18 5 ld. DR, on the other hand, relied upon the orders of Revenue Authorities.
We have duly considered the rival contentions and gone through the record carefully. On page 28, the assessee has placed on record copy of acknowledgement of his ITR. This return was filed by the assessee by mentioning his jurisdiction under Ward-3, Sirsa, however, we find a second copy of the return submitted on 13.12.2018 at page No. 33 wherein assessee has mentioned Ward-4, Panchkula. Copy of this return for assessment year 2017-18 is available on page 33.
A perusal of both the returns would indicate that one return was filed by the assessee within due date at Ward-3, Sirsa. This was filed on 19.12.2017. On this return notice u/s 143(2) was issued by ITO, Ward-3, Sirsa. On this very return, second notice was issued by ITO, Ward-4, Panchkula on 29.09.2018 because the revised return was filed on 13.12.2018. By that time, all the notices alleged to have been issued upon the assessee u/s 143(2). In the above circumstances, we are of the view that if original jurisdiction lies upon the assessee at ITO, Ward-3, Sirsa, then ITO, A.Y.2017-18 6 Ward-4, Panchkula has no jurisdiction unless it is transferred by the Competent Authority u/s 127 of the Income Tax Act. The facts regarding transfer of jurisdiction from ITO, ward-3, Sirsa to ITO Ward-4, Panchkula are not available, but it is clear that assessee has responded all the notices of ITO, Panchkula and never raised any objection about change of his jurisdiction. The copies of the replies are available on page No. 52 onwards of the Paper Book. The assessee has not raised this objection even in reply to the Show Cause Notice received u/s 263 of the Income Tax Act before the ld. Commissioner. Hon'ble Supreme Court in the case of DCIT Vs Kalinga Institute of Industrial Technology reported in 152 taxman.com 434 has observed that if no objection was raised by an assessee during the assessment proceedings about lack of jurisdiction of the AO, then assessee would be percluded to raise such objection in further appeal.
Considering these facts and non-production of complete material by the assessee before us, coupled with the fact that assessee himself has filed his revised return by mentioning address of Panchkula as his address, we do not find any merit A.Y.2017-18 7 in this ground of appeal. The assessee did not place on record PAN details exhibiting his address on the Portal of the Income Tax Department. Thus, this fold of grievance raised by the assessee is rejected.
Apart from the above defect, we also find that case of the assessee was selected for a limited scrutiny, for enquiring two items. The CBDT has issued Instruction No.5 way back in 2016 i.e. 14.07.2016. The relevant part of this Instruction reads as under : Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes North Block, New Delhi, the 14th of July, 2016
Subject: Direction regarding scope of enquiry in cases under 'Limited Scrutiny’ selected through CASS 2015 & 2016-regd.- Vide Instruction No.20/2015 dated 29.12.2015 in File of even number, Board has laid down and Operating Procedure for handling of cases under 'Limited Scrutiny' which were selected through Computer Aided Scrutiny Selection in 'CASS Cycle 2015'. In these cases, it was stated that the general scope of enquiry in scrutiny proceedings should be restricted to the relevant parameters which formed the basis for selecting the case for scrutiny. However, in revenue potential cases, it was further provided that 'Complete Scrutiny' could be conducted, if there was potential escapement of income above a prescribed monetary limit, subject to the approval of administrative Pr. CIT/CIT/Pr. DIT/DIT. ………………….”
A.Y.2017-18 8 9.1 A perusal of the Instruction would indicate that AO has to restrict himself to the relevant parameters which form the basis for selecting the case for scrutiny. However, in a revenue potential case, it was further provided that complete scrutiny can be conducted if the potential escapement was brought to the notice of Competent Authority and approval having taken from PCIT, CIT, Pr. DIT. No such development has taken place in the present case. Therefore, we observe that scope of limited scrutiny therein could be enlarged by taking approval from the Competent Authority. The issues in which error could be found out by the ld. CIT u/s 263 are to be confined qua those two issues, namely : a) Unsecured loans b) Credit Card Payments 9.2 With the above observation, now we proceed to decide whether action taken by the ld. Commissioner is in consonance with the law or not. In other words, whether action u/s 263 is valid or not? The copy of the Show Cause Notice issued u/s 263 is available on page No. 19 to 27 of the Paper Book. A perusal of this Show Cause Notice would reveal that ld. CIT has raked up three issues :
A.Y.2017-18 9 a) Increase in opening capital balance b) Credit Card payments, and c) Unsecured loans
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 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 A.Y.2017-18 10 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;
(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 A.Y.2017-18 11 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.”
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 A.Y.2017-18 12 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 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 A.Y.2017-18 13 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.
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.
ITA No.365/CHD/2022 A.Y.2017-18 14
(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.
(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 A.Y.2017-18 15 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.
(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.
We have duly considered the rival contentions and gone through the record carefully. In the light of above, let us examine the facts. A perusal of the record would reveal that on page No. 29 of the Paper Book, copy of the notice issued A.Y.2017-18 16 u/s 143(2) is available. As per this notice, case of the assessee was selected for limited scrutiny on two issues; unsecured loans and credit card payments. The copy of the notice issued u/s 142(1) dated 13.11.2019 is placed at page 46 of the Paper Book. This notice has an annexure running into three pages. A perusal of this annexure would reveal that ld. AO sought explanation of the assessee on 16 counts. At Sr.No.7, the AO raised the questionnaire which read as under: x x x Sr.No. 7 : As per balance sheet, unsecured loans amounting to Rs.2,28,00,000/- claimed to have been received by you. Furnish the details i.e. name and address of persons with their copy of account. Also furnish confirmation of same.
The AO, thereafter, sought explanation of the assessee on various other issues, but at Sr.No. 14 to 16, his query read as under : “14. Please furnish the datewise details of above expenses alongwith copy of account of these expenses. Please explain whether the same has been subjected to TDS wherever applicable. 15. Provide detail i.e name and address of persons from whom unsecured loans claimed to have been taken by you during the period under consideration. Also furnish confirmation in respect of same.
Furnish source of cash payment made in detail of credit card purchases made by you during the period under consideration. Provide credit card statement in respect of same.” A.Y.2017-18 17 15.1 These Show Cause Notices have duly been replied by the assessee and copies are available on page No. 50 and 51. The AO, thereafter, issued another questionnaire vide notice dated 13.12.2019 and the same was also replied by the assessee. It was regarding unsecured loans, ledger, PAN Card and confirmation attached. The details in this reply have been placed on page No. 52 to 93 of the Paper Book. A perusal of the replies given by the assessee would indicate that he has explained the details of alleged unsecured loans. He has filed PAN data of the creditors and submitted the other details. The AO was satisfied with the quality of evidence submitted by the assessee. Though AO has accepted the stand of the assessee but did not make much discussion in the assessment order. But it does not indicate that he has not conducted the enquiry. He has confronted the assessee with the relevant question and thereafter assessee submitted the requisite details to the AO.
16. As far as the issue of credit card payments is concerned, the assessee has submitted the details of credit card payments. The details of such payments are being noticed even by the ld. CIT in the impugned order on page No. 4 to 7.
A.Y.2017-18 18 We find that ld. CIT just reproduced the copy of the Show Cause Notice in the impugned order and thereafter observed in paragraph No. 5.3 that there is a discrepancy that credit card details furnished by the assessee were not complete and correct. There is no basis to record such a finding. The ld. CIT then ought to have gone through the details submitted by the assessee and thereafter ought to have arrived at a firm conclusion exhibiting the exact nature of discrepancy. The assessee has alleged that he has credit cards of SBI as well as American Express Bank, whose payments have been made in cash and debit of such expenditures are reflected in his capital account. The assessee has given complete details of the bank accounts to the AO. He has given details of secured loans as well as of unsecured loans. According to the reply of the assessee available on page 57 of the Paper Book, he has made total purchases of Rs.7,14,228/-. He has made total payment of Rs.8,53,500/- to both the cards, Rs.5,94,000/- for SBI and Rs.2,59,500/- for American Express Bank. Such payments were made from Capital Account and necessary withdrawal has been shown. All these details must have been gone into by the AO before accepting the claim of the assessee. Ld. CIT has made just general observations without specifying the A.Y.2017-18 19 specific error. The ld. CIT has committed an error in construing that case was selected for complete scrutiny in the Show Cause Notice issued u/s 263 whereas, there is no detail available on the record which suggest that a limited scrutiny case was converted into full scrutiny. Nothing has been brought to our notice. Therefore, the foundation of the order of the ld. CIT is based upon wrong facts that the case of the assessee was selected for complete scrutiny. This assumption would goad the CIT in arriving on wrong conclusions.
The ld. CIT DR, at the time of hearing submitted that consequential order has been passed by the AO, therefore, in view of the judgement of Hon'ble Punjab & Haryana High Court in the case of Veena Shah Vs PCIT, Rohtak (ITA No. 153-2024) dated 13.02.2025, this appeal becomes redundant and infructuous. Copy of the Hon'ble High Court’s decision has been placed on record by the ld. DR. We have duly considered the arguments raised by the ld. CIT DR but we do not find any merit in it. An appeal to the Tribunal against an order passed u/s 263 is a statutory appeal. The powers u/s 263 can be exercised where impugned order of the AO is erroneous and has caused a prejudice to the interests of the Revenue. If any single limb of these conditions is absent, then no action u/s A.Y.2017-18 20 263 can be taken. The Hon'ble Supreme Court in the case of CIT Vs Max India Ltd. reported in 295 ITR 282 has reiterated this position of law that on fulfilment of twin conditions, i.e. error committed by the AO which has caused prejudice to the interests of the revenue, only then the order u/s 263 can be passed. This aspect can always be examined by an Appellate Authority against an order passed u/s 263. The position of law was also explained by the Hon'ble Supreme Court in the case of Malabar Industries (supra) as well as in a large number of judgements. The remedy of appeal before the Tribunal would not become infructuous simply for the reason that AO has passed the consequential order. We would like to make reference to the latest decision of the Hon'ble Supreme Court in the case of PCIT Vs V-con Integrated Solutions Pvt. Ltd. SLP No. 13205/2025. This SLP was filed against the judgement of Hon'ble Punjab & Haryana High Court in ITA No. 88/2024.
“In our opinion, the order passed by the High Court, which upheld the decision of the Tribunal, is correct on facts and in law. This case does not involve a failure by the assessing officer to conduct an investigation. Instead, according to the Revenue, it is a case where the assessing officer having made inquiries erred by not making additions. The assessee does not have control over the pen of the Assessing Officer. Once the Assessing Officer carries out the investigation A.Y.2017-18 21 but does not make any addition, it can be taken that he accepts the plea and stand of the assessee. In such cases, it would be wrong to say that the Revenue is remediless. The power under Section 263 of the Income Tax Act, 1961, can be exercised by the Commissioner of Income Tax, but by going into the merits and making an addition, and not by way of a remand, recording that there was failure to investigate. There is a distinction between the failure or absence of investigation and a wrong decision/conclusion. A wrong decision/conclusion can be corrected by the Commissioner of Income Tax with a decision on merits and by making an addition or disallowance. There may be cases where the Assessing Officer undertakes a superficial and random investigation that may justify a remit, albeit the Commissioner of Income Tax must record the abject failure and lapse on the part of the Assessing Officer to establish both the error and the prejudice caused to the Revenue. Recording the aforesaid, the special leave petition is dismissed.”
In view of the position of law explained by the Hon'ble Supreme Court, we do not find any merit in the contention of ld. CIT DR. The judgement in the case of Veena Shah Vs PCIT, Rohtak (ITA No. 153-2024) dated 13.02.2025 is on the facts and circumstances of that case. The Hon'ble Court has not construed or interpreted the scope of Section 263 by way of this judgement. The scope of Section 263 has been explained by the Hon'ble Supreme Court in a large number of A.Y.2017-18 22 judgements. We may also cite the judgement of Hon'ble jurisdictional High Court in the case of Mahender Pal Narang Puneet Singh 110 taxmann.com [2019]. Similarly, PCIT Vs Yes Bank [2017] 99 CCH page 445. Thus, ld. DR can not take much benefit from the judgement in the case of Veena Shah. Taking into consideration all these facts and circumstances, we are of the view that ld. CIT has erred in taking cognizance u/s 263 in the present case. Accordingly, we allow the appeal of the assessee and quash the impugned order.
In the result, appeal of the assessee is allowed.
Order pronounced on 28.05.2025.