Loading judgment…
Facts
The assessee, a private limited company engaged in construction and sale of properties, filed its return of income for AY 2017-18. The assessment was processed u/s 143(1) and later selected for scrutiny u/s 143(2). The Assessing Officer passed an assessment order u/s 143(3) after conducting inquiries. Subsequently, the Pr. CIT issued a show cause notice u/s 263 proposing to revise the assessment order, alleging it was erroneous and prejudicial to revenue.
Held
The Tribunal held that the Pr. CIT erred in initiating revisionary proceedings u/s 263 without properly considering the assessee's submissions and without discussing why they were not found satisfactory. The Tribunal noted that the Assessing Officer had conducted sufficient inquiries and applied his mind to the case, distinguishing between a "lack of enquiry" and an "inadequate enquiry".
Key Issues
Whether the Pr. CIT was justified in invoking powers u/s 263 of the Income Tax Act to revise the assessment order when the Assessing Officer had conducted sufficient inquiries and applied his mind, and the Pr. CIT's order lacked proper consideration of assessee's submissions and was not a speaking order.
Sections Cited
263, 143(3), 143(1), 143(2), 142(1), 44AB, 41(4), 36(1)(vii), 36(1)(viia), 43B, 80-IA, 37
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, LUCKNOW BENCH A, LUCKNOW
Before: SHRI ANADEE NATH MISSHRA & SHRI SUBHASH MALGURIA
2017-18 against impugned order dated 23/03/2022 (DIN & Order No.ITBA/REV/F/REV5/2021-22/1041308287(1) passed by learned Pr. Commissioner of Income Tax (“PCIT” for short), Bareilly u/s 263 of the Income Tax Act, 1961 (“the Act” for short). In this appeal the assessee has raised the following grounds:
“1. Grounds No. 1: The Learned PCIT, Bareilly has erred in initiating and completing the revisionary proceedings u/s 263 of the Act in the hands of the assessee, and setting aside the case to the Assessing officer, with total disregard to the facts and circumstances of the case, and is untenable under the law.
2. Grounds No. 2: The Learned PCIT, Bareilly erred in setting aside the assessment made vide order under section 143(3) dated 14/12/2019 and passing an order under section 263 of the Act on the grounds that the original assessment order passed under section 143(3) was erroneous and prejudicial to the interest of the revenue and directing AO to frame fresh assessment order (de novo) after giving reasonable opportunity of hearing to the appellants.
3. Grounds No. 3: The Learned PCIT, Bareilly has further failed to appreciate that the original assessment order was passed by the Assessing officer after considering all the issues mentioned in his show cause notice and after making due enquiries, and thus the case was not the one of lack of enquiry by the Assessing officer.
Grounds No. 4: The Learned PCIT, Bareilly erred in law as well as on the facts of the case in wrongly setting aside the assessment order dated 14/12/2019 despite there being complete application of mind by the AO on the subjected issues and it was nothing but a case of change of opinion, based on which, assumption of jurisdiction u/s 263 is not permissible. The impugned order dated 23/03/2022 therefore, lacks valid jurisdiction u/s 263 of the Act and hence, the same kindly be quashed.
5. Grounds No. 5: The Learned PCIT, Bareilly further failed to appreciate that where there were two possible views and a logical view had been taken by the Assessing officer in the original assessment proceedings, the revisionary proceedings could not be initiated to substitute his own view.
Grounds No. 6: That the finding of Learned PCIT, Bareilly that order of the learned Assessing Officer is erroneous and prejudicial to the interest of revenue is factually incorrect, legally misconceived, contrary to evidence on record; and in any case is vague, based on surmiseful considerations; and therefore unsustainable.
7. Grounds No. 7: That the Learned PCIT, Bareilly has erred in holding that it is a case of "lack of enquiry" and, further failing to appreciate that alleged inadequate enquiry in the manner suggested without any independent evidence and, without any further enquiries by him cannot be a basis for assumption of jurisdiction u/s 263 of the Act.
8. Grounds No. 8: The Learned PCIT, Bareilly has without conducting any independent enquiries has held the order to be erroneous and prejudicial to the interest of the revenue, has set aside the assessment back to the file of the Assessing officer with total disregard to the facts and circumstances of the case. The CIT has failed to appreciate that powers of revision u s 263 cannot be exercised for redoing the investigation, rather the CIT ought to have done the investigation himself before restoring the matter to the AO.
9. Grounds No. 9: The Learned PCIT, Bareilly has further ignored that in view of the provisions of explanation 2 of section 263, it is incumbent to point out what more enquiries would the AO ought to have conducted.
10. Grounds No. 10: That the Learned PCIT, Bareilly has also failed to appreciate that, u/s 263 of the Act, an order of assessment cannot be set-aside to simply to make further enquiries and thereafter pass fresh order of assessment and as such, impugned order is contrary to law and hence, unsustainable . The learned Principal Commissioner of Income Tax has failed to appreciate that surmises, conjecture and suspicion could not be a basis much less a valid basis to invoke section 263 of the Act.
11. Grounds No. 11: That the Learned PCIT, Bareilly has framed the impugned order without granting sufficient opportunity to the appellant and therefore the order made is illegal, invalid and. vitiated order Prayer - It is therefore prayed that, impugned order dated 23.3.2022 under section 263 of the Act be held to be without jurisdiction and, therefore be quashed and appeal of the appellant be allowed.
Grounds No. 12: The assessee's case does not fall within the mischief of section 263 and As such the order is bad in law and the same is liable to be cancelled.”
The facts of the case, in brief, are that the assessee is a private limited company, which is engaged in the business of construction and sale of properties and flats. The assessee electronically filed his return of income for the year under consideration on 30/03/2018 declaring total income of Rs.36,84,720/-, which was processed u/s 143(1) of the Act whereby the assessee’s total income was determined at Rs.36,84,720/-. The case of the assessee was selected for scrutiny through CASS and accordingly, notice u/s 143(2) of the Act was issued and served on the assessee. Thereafter, notice u/s 142(1) of the Act alongwith questionnaire, requiring the assessee to furnish information, was also issued to the assessee. In response thereto, the assessee made online/offline submissions. In the assessment order, the following observations were recorded by the Assessing Officer:
2. In the scrutiny, the point which was identified was with regards to depreciation claim and income from real estate business during the year. On this point, categorical explanation was called from the assessee and the same has been submitted by him, which has been placed on record.
Vide impugned order dated 23.03.2022 of the PCIT, the assessment order dated 14/12/2019 was set aside to be framed denovo as per law by the Assessing Officer. In the aforesaid order dated 23.03.2022, passed under section 263 of the Act, at paragraph no. 3, the Ld. PCIT has stated that the assessee filed submissions during the proceedings under section 263 of the Act. However, there is no discussion in the aforesaid order about what submissions were made by the assessee, and why the Ld. PCIT did not agree with the submissions. The relevant part of the impugned order dated 23.03.2022 passed under section 263 of the Act is reproduced as under: - “3 Thereafter, on change of incumbency, fresh notices were issued to the assessee company. The assessee during the proceedings has filed the submissions in response to the show cause notice issued.
4. I have gone through the submissions of the assessee filed in response to the show cause notice issued u/s 263 of the Act and perused the assessment record. Following observations are made with regard to the assessment order passed by the AO...................”
4. The present appeal has been filed by the assessee against the aforesaid impugned order dated 23.03.2022 passed under section 263 of the Act. In the course of appellate proceedings in Income Tax Appellate Tribunal (“ITAT” for short), the following particulars were filed from the assessee’s side: -
Further, a copy of order in Special Leave Petition (Civil) Diary No. 13205/2025 (arising out of impugned final judgment and order dated 12/09/2024 in passed by the High Court of Punjab & Haryana at Chandigarh) dated 4th April, 2015 of Hon'ble Supreme Court in the case of Pr. Commissioner of Income Tax vs. M/s V-Con Integrated Solutions Pvt. Ltd. was also filed from the assessee’s side and reliance was placed on it by the Ld. Counsel for assessee. Moreover, a list of following case laws relied upon by Ld. Counsel for the assessee was also filed from the assessee’s side: -
Malabar Industrial Co. Ltd. [2000] 243 ITR 83 (SC) 2. CIT vs. Gabriel India Ltd. [1993] 203 ITR 108 (Bombay) 3. CIT vs. Land Infrastructure Development Projects Ltd. [2013] 357 ITR 763 (Mad) 4. CIT vs. MAX India Limited [2007] 295 ITR 282 (SC) 5. CIT vs. Sunbeam Auto Ltd. 332 ITR 167 (Del) 6. Income Tax Officer vs. Dg. Housing Projects Ltd., of Delhi –date of order 01/03/2012 343 ITR 329 (Del) 7. CIT vs. Vikas Polymers [2010] 194 Taxman 57 (Delhi High Court) 8. Haryana Coach Body Builders [2006] 10 SOT 736 (Delhi) 9. CIT vs. Mohd. Ishaq Mohd. Gulam 276 ITR 13 (MP) 10. CIT vs. Ganpat Ram Bishnoi 152 Taxman 242 (Raj), 296 ITR 292 11. Balram Manmani vs. ACIT 7 SOT 368 (Lucknow ITAT) 12. Salora International vs. ACIT 02 SOT 705 (Delhi Tribunal) 13. CIT vs. Arvind Jewellers 259 ITR 502 (Guj) 14. ACIT vs. Technip Italy Spa [2006] 150 Taxman 13 (Delhi Tribunal) 15. Antala Sanjaykumar Rasvjibhai vs. CIT [2012] 135 ITD 506 (Rajkot Tribunal) 16. Vijay Kumar Megotia vs. CIT [2010] 3 ITR (T) 760 (Patna Tribunal) 17. Roshan Lal Vegetable Products (P) Ltd. vs. Income Tax Officer, Appeal No. 6(ASR) of 2010, assessment year 2006-07
Fine Jewellery (India) Ltd. vs. ACIT [2012] 19 ITR (Trib.) 746 (Mumbai) 19. Amrit Singh vs. Income Tax Officer [2003] 127 Taxman 87 (Mag.)(Chd.)(Tribunal) 20. Ratlam Coal Ash Co. vs. CIT 171 ITR 141 (MP) 21. Bagaria Vegetable Products Ltd. vs. JCIT [2008] 303 ITR (AT) 278 (Pune)] 22. Saw Pipes Ltd. vs. CIT [2005] 3 SOT 327 (Delhi) 23. Brij Bhushan Agarwal vs. CIT (Agra) 2 SOT 811 (2005) 24. CIT vs. Associated Food Products P. Ltd. 280 ITR 377 (MP) 25. Goyal Family Trust vs. CIT 171 ITR 698 (All) 26. Hari Iron Trading Co. vs. CIT 263 ITR 437 27. CIT vs. Ashish Rajpal 180 Taxman 623 (Delhi) order dated May 14, 2009 28. Anil Shah vs. ACIT 162 Taxman 39 (Mum) (Mag) order dated April 21, 2006 29. Jashn Beneficiary Trust vs. ACIT 88 Taxman 824 (Jabalpur-Trib.) order dated March 15, 2017 30. Metro Development vs. Pr CIT order dated 31/10/2022 31. Pr. CIT vs. Clix Finance India (P) Ltd. 160 taxmann.com 357 (Delhi) order dated March 01, 2024 32. Britannia Industries Ltd. vs. Pr.CIT 161 taxmann.com 705 (Kolkata-Trib.) order dated 06/03/2024 33. Arun Kumar Garg HUF vs. Pr.CIT order dated 08/01/2019 34. [2024] 159 taxmann.com 347 (Rajkot-Trib.) Kutch District Co- op. Milk Producers’ Union Ltd. vs. Pr.CIT order dated January 29, 2024 35. [2024] 160 taxmann.com 1039 (Ahmedabad-Trib.) Gujarat Energy Transmission Corporation Ltd. vs. Pr.CIT 36. [2024] 159 taxmann.com 29 (Delhi-Trib.) Vaaan Infra (P.) Ltd. vs. Pr.CIT 37. [2024] 162 taxmann.com 759 (Delhi-Trib.) Ahlcon Parenterals (India) Ltd. vs. Pr.CIT 38. [2024] 163 taxmann.com 574 (Kolkata-Trib.) Rajesh Kumar Jalan vs. Pr.CIT 39. Uma Glass Works vs. Pr.CIT I.T.A. No.17&18/Agra/2021, ITAT Delhi order dated 05/09/2017 41. Sharnam Realities Pvt. Ltd. vs. Pr.CIT [2024] 161 taxmann.com 437 (Ahd. ITAT) 42. Pr.CIT vs. Mukesh Chand Mal Pitti R/Tax Appeal No. 507 of 2023 High Court Gujrat at Ahmedabad 43. Narayan Tatu Rane vs. Income Tax Officer [2016] 70 taxmann.com 227 (Mum.Trib.) 44. Sir Ratan Tata Trust vs. DCIT (Exemption)[2020] 122 taxmann.com 273 (Mum.Trib.) 45. CIT vs. Vam Resorts & Hotels Pvt. Ltd. Allahabad High Court, of 2015 order dated 20/08/2019 46. CIT vs. M/s Krishna Capbox (P) Ltd. Allahabad High Court, I.T.A. No.01 of 2015, order dated 23/02/2015 47. Pr.CIT vs. Universal Music India Pvt. Ltd. Bombay High Court, I.T.A. No.238 of 2018, order dated 19/04/2022 48. Smt. Kanta Rani vs. Pr.CIT, ITAT Chandigarh Bench, I.T.A. No.446/Chd/2022, order dated 20/02/2023 49. Shri Dheeraj Singh Sisodiya vs. Pr.CIT, ITAT Jaipur, I.T.A. No.132/JP/2022, order dated 10/08/2022 50. Reliance Payment Solutions Limited vs. Pr.CIT, ITAT Mumbai, I.T.A. No.1010/Mum/2021, order dated 21/03/2022 51. Model Exim vs. Pr.CIT, I.T.A. No.137/Lkw/2022, order dated 05/11/2024 52. Pr.CIT vs. V-Con Integrated Solutions Pvt. Ltd. Special Leave Petition (Civil) Diary No.13205/2025, order dated 04/04/2025 Supreme Court 6. At the time of hearing before us, the Ld. Counsel for assessee submitted that the Assessing Officer had conducted all relevant inquiries. He drew our attention to the observation recorded by the Assessing Officer in paragraph no. 3 of the assessment order (reproduced in foregoing paragraph no. 2 of this order). Further, he contended that detailed submissions were made by the assessee in the course of assessment proceedings. In this regard, he drew our attention to the paper book containing copies of notice issued by the Assessing Officer and copy of replies filed by the assessee before the Assessing Officer during the assessment proceedings. He further submitted that the relevant queries were made by the Assessing Officer and the replies submitted by the assessee during the assessment proceedings were brought to the knowledge of the Ld. PCIT during the proceedings under section 263 of the Act, and detailed submissions were also submitted in writing as well as at the time of personal hearing. However, he contended the Ld. PCIT passed the order under section 263 of the Act with pre- mediated and biased mind-set against the assessee, which is clearly evidenced by the fact that there is no discussion in the impugned order dated 23.03.2022 passed by the Ld. PCIT under section 263 of the Act on the submissions made from the assessee’s side and there is no discussion in the aforesaid order under section 263 of the Act of Ld. PCIT, why the Ld. PCIT did not agree with the submissions made from the assessee’s side. Further, the Ld. Counsel for assessee submitted that in the absence of any discussion on assessee submission in the impugned order of the Ld. PCIT, the order was non-speaking order, clearly in violation of principle of natural justice and should be quashed in limine. He drew our attention to the written submissions filed by the assessee in the office of the Ld. PCIT during the proceedings under section 263 of the Act which is reproduced as under: -
The Ld. Counsel for the assessee also placed reliance on the aforesaid precedents referred to in foregoing paragraph no. 3 of this order and submitted that impugned order dated 23.03.2022 of the Ld. PCIT passed under section 263 of the Act should be quashed even on merits.
The Ld. Departmental Representative for Revenue relied on order passed by the Ld. PCIT. However, he did not dispute the fact claimed by the Ld. Counsel for the assessee and also did not bring any additional material for our consideration in support of the impugned order dated 23.03.2022 passed by the Ld. PCIT under section 263 of the Act.
We have heard the rival parties and have gone through the material placed on record. It is not in dispute that the Assessing Officer has recorded in paragraph no. 2 of the assessment order, that explanation was called for the assessee on all the points on which the case was selected for scrutiny, which has been placed on record. It is also not in dispute that the Assessing Officer made inquiries with the assessee through notices issued under section 142(1) of the Act dated 19/11/2019, 01/10/2019, 17/08/2019 & 15/11/2018 and that the assessee responded to these notices by way of written submissions which are placed at pages from 80 to 101 of paper book (dated 24.02.2025) and at page 102 of the paper book (dated 13./08/2021). Further, it is found that the detailed submissions made by the assessee before the Ld. PCIT in the course of proceedings under section 263 of the Act have been acknowledged by the Ld. PCIT in his impugned order dated 23.03.2022 at paragraph no. 3 but the Ld. PCIT failed to consider the submissions made by the assessee and also failed to pass a speaking order on why the submissions made by the assessee were not considered satisfactory. On perusal of record we are satisfied that relevant inquiries were made by the Assessing Officer during assessment proceeding. Further the learned Pr.CIT, in his impugned order, has merely stated that the Assessing Officer passed the assessment order without verifying and conducting further inquiries on various issues; without specifying what further verification or inquiries were to be conducted. The learned Pr.CIT has acknowledged that some inquiries were conducted on various issues discussed in the impugned order u/s 263 but has passed the impugned order on the sole ground that further inquiries were not conducted. Thus, it is obvious that it is not a case in which no inquiry was conducted by the Assessing Officer. It is not in dispute that some inquiries were conducted and the Assessing Officer took the considered view thereafter.
In view of the foregoing, and having regard to the submissions made by the assessee during proceedings under section 263 of the Act, and earlier during assessment proceedings; and with deference and respect for case laws relied upon by Ld. Counsel for the assessee, it is held that the Ld. Pr.CIT failed to make a case for action under section 263 of the Act. Accordingly, the impugned order dated 23.03.2022 of the Ld. PCIT passed under section 263 of the Act is set aside and the aforesaid assessment order dated 14/12/2019 is restored.
In the result, the appeal of the assessee is allowed. (Order pronounced in the open court on 12/06/2025)