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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri J. Sudhakar Reddy, AM & Shri A. T. Varkey, JM]
ORDER Per Shri A. T. Varkey, JM:
This appeal preferred by the assessee is against the order of Ld. PCIT-2, Kolkata dated 17.03.2020 for Assessment year 2015-16 u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act).
At the outset, the Ld. A.R of the assessee, Shri Akkal Dudhwewala, assailing the action of the Ld. PCIT to interfere in the assessment order passed by the AO dated 11.08.2017 for AY 2015-16 by exercising his revisional jurisdiction contended that the Ld. PCIT erred in invoking the revisional jurisdiction u/s 263 of the Act without satisfying the condition precedent as contemplated u/s 263 of the Act. Therefore, according to Ld. A.R, the impugned order of Ld. PCIT is bad in law and therefore, being without jurisdiction has to be quashed. According to Ld. A.R, in this case for this assessment year, the assessee’s case was taken up for limited scrutiny under CASS which fact can be discerned from page 19 of PB and he drew Assessment Year:2015-16 Spotlight Vanijya Ltd. our attention to the notice issued on 29.07.2016 u/s 143(2) of the Act informing that the assessee’s case has been selected for limited scrutiny under CASS. From a perusal of the same, we note that the reason for limited scrutiny was for three items; i) Income from heads of income other than business/profession mismatch ii) Sales turnover mismatch iii) Investments in unlisted equities
This fact of limited scrutiny on these three items are also discernible from perusal of page 22 and 23 of PB which is the copy of notice sent by the AO u/s 142(1) dated 21.02.2017. It is noted that the assessee has replied to the notice of AO vide letter dated 17.08.2016 and 14.04.2017 which is available at page 21 & 24-25 of the PB. And the AO after going through the submissions and replies along with supporting documents and after hearing the assessee, the AO has passed the assessment order dated 11.08.2017 wherein he assessed the total income as per normal provisions at Rs.91,95,770/- and book profit u/s 115JB of the Act at Rs.94,94,533/-.
Thereafter the Ld. PCIT-2, Kolkata issued show cause notice dated 13.01.2020 u/s 263 of the Act wherein he disclosed his desire to interfere and revise the assessment order passed by the AO dated 11.08.2017 for AY 2015-16 (copy of SCN which is placed at 26 & 27 of PB). The only issue that has been pointed out by the Ld. PCIT in the SCN is regarding deduction of Rs.10,02,198/- having been incurred on account of Insurance premium to the Flats at Mumbai from which rental income of Rs.4,20,000/- had been offered under the head ‘Income from House Property’ after claiming standard deduction of Rs.1,80,000/- u/s 24 of the Act. The Ld. PCIT has stated in his SCN as under:
Assessment Year:2015-16 Spotlight Vanijya Ltd.
Pursuant to SCN of Ld. PCIT, the assessee had filed its reply objecting to the very invocation of revisional jurisdiction by Ld. PCIT vide letter dated 29.01.2020 and 31.01.2020. A copy of which is seen placed at 28 to 42 of PB in which the assessee has clearly stated that the assessee’s case for AY 2015-16 was selected for scrutiny assessment only for the limited scrutiny under CASS for the three (3) items discussed supra and issue of deduction of Rs.10,02,198/- was not figuring in and in fact the amount incurred on account of Insurance premium to the Flats at Mumbai was only Rs.2,198/- which was duly added back by the assessee to the income while computing the ‘income from business and profession’ as per section 37 of the Act. It was pointed out by the assessee that the insurance premium amounting to Rs.10,00,000/- is related to Keyman Policy and not related to flats at Mumbai as alleged by the PCIT. Hence, it was contended by the assessee that this amount of Rs.10,00,000/- has not been added back to the income while computing ‘income from business and profession’ and which is allowable u/s 37 of the Act. And, therefore, the assessment order passed by the A.O u/s 143(3) is not erroneous, Assessment Year:2015-16 Spotlight Vanijya Ltd.
therefore, section 263 proceedings is not maintainable. It was also pointed out by assessee that as per CBDT Instruction No. 2/2014 dated 26.09.2014, the field officers were directed to confine their enquiries strictly to CASS reasons and they were not permitted to make enquiries in respect to the issues for which case was not selected for limited scrutiny. It was therefore contended before the Ld. PCIT that when the CBDT has prohibited the AO from making any other enquiries other than on the issues for which limited scrutiny has been selected for by CASS, the AO could not had gone into any other issues now raised by the Ld. PCIT (supra). So, according to Ld AR, the AO was justified in not enquiring in to the issue of Insurance Premium (Keyman Policy), which omission on the part of AO has been racked up in the revisional jurisdiction, which Ld PCIT cannot do because the AO’s omission is as per the CBDT circular and therefore cannot be held to be erroneous. Therefore, according to Ld AR, the impugned action of Ld. PCIT by exercising jurisdiction u/s 263 of the Act on this issue i.e. Insurance Premium (Keyman Policy) of Rs.10,00,000/- is akin to Ld. PCIT trying to do indirectly what the AO could not have done directly. It was brought to our notice that even though these material facts were brought the notice of Ld. PCIT, he did not drop the proceedings. Therefore, he pleaded that impugned action of Ld PCIT may be quashed. Per-Contra, the Ld CIT DR, fully supported the impugned order and submitted that the even though Assessing Officer has to conduct scrutiny only on the issues raised by the CASS limited scrutiny, however if the A.O wanted to enlarge the scope of inquiry, then he has to take up the matter with the jurisdictional PCIT who has the power to enlarge the scope of scrutiny. Since, the insurance premium issue has not been taken up by the A.O during assessment for enlarging the scope of scrutiny, the Ld. PCIT has rightly exercised the revisional jurisdiction and has found that the order of the A.O is erroneous and prejudicial to the Revenue and therefore, he has rightly exercised his jurisdiction to invoke it and therefore, we should not interfere in the impugned order passed by the Ld. PCIT.
Assessment Year:2015-16 Spotlight Vanijya Ltd.
After hearing both parties and perusal of records, we are of the opinion that the Ld. PCIT could not have exercised his revisional jurisdiction on the issue on which he found fault with the action/omission on the part of AO because in the first place the AO could not have been faulted for not conducting any enquiry on the issue of Insurance Premium (Keyman Policy) of Rs.10,00,000/-, since the assessee’s case was selected for scrutiny only for limited purpose under CASS and the issue of Insurance Premium (Keyman Policy) of Rs.10,00,000/- was not the reason for selection of the case for limited scrutiny. Therefore, as per the CBDT circular (supra) the AO could not have initiated enquiry on the issue of Insurance Premium (Keyman Policy) of Rs.10,00,000/- and it is settled law that CBDT circulars are binding on income tax authorities. Therefore in such a scenario, the Ld. PCIT could not have invoked jurisdiction u/s 263 of the Act because he could not have held the AO’s order to be erroneous because the AO was justified in not enquiring in to the issue of Insurance Premium (Keyman Policy) of Rs.10,00,000/-, since the AO has gone as per the dictum of CBDT circular on the subject. Therefore, the AO’s action/ omission of not looking into the issue of Insurance Premium (Keyman Policy) of Rs.10,00,000/- cannot be termed as erroneous . And, therefore, the Ld. PCIT could not have invoked revisional jurisdiction since AO’s omission not to look into the issue of keyman policy was in consonance with the CBDT dictum on the subject and so it cannot be termed as erroneous and prejudicial to Revenue; and the impugned action of Ld. PCIT is akin to do indirectly what the AO could not have done directly. Thus it is noted that Ld. PCIT has ventured to exercise his revisional jurisdiction by issuing SCN dated 13.01.2020 without satisfying the essential condition precedent to invoke the jurisdiction u/s 263 of the Act. Therefore the very initiation of jurisdiction by issuing SCN itself is bad in law and therefore it is quashed. Consequently all further actions/proceeding including the impugned order of Ld. PCIT is non-est in the eyes of law. For this we rely on the decision of this Assessment Year:2015-16 Spotlight Vanijya Ltd.
Tribunal in Sanjib Kumar Khemka in Kol/2016 for AY 2011-12 dated 02.06.2017 wherein it has been held that: “Now coming to the facts of the instant case, we find that the instant case was selected on the basis of AIR Information as evident from the order of AO under section 143(3) of the Act. There is also no whisper in the order of the AO for expanding the scope of limited scrutiny after obtaining the permission from the Administrative CIT. The ld. DR has also failed to bring anything contrary to the argument of the ld. AR. Therefore in our considered view the scrutiny should have been limited only to the information emanating from the AIR. Admittedly, the assessee has claimed to have filed an appeal before Ld. CIT(A) challenging the jurisdiction exceeded by the AO while framing the assessment order u/s 143(3) of the Act. We find that the impugned issue being legal in nature and goes to the root of the matter therefore we are inclined to proceed with this issue first by holding that, from the above submission and after examining of the records, we find that the Ld. CIT in his impugned order u/s 263 of the Act has exceeded his jurisdiction while holding the order of AO as erroneous in so far prejudicial to the interest of Revenue. In view of the above we hold that the ld. CIT has in his order u/s. 263 of the Act exceeded the jurisdiction by holding the order of AO as erroneous in so far as prejudicial to the interest of Revenue on those items which are not emanating from the AIR. Thus, we are inclined to adjudicate only those matters which are emanating from the AIR as discussed above.”
And to the decision of this Tribunal in the case of M/s Chengmari Tea Co. Ltd. in for AY 2014-15 dated 31.01.2020 which is placed at page 62 to 70 wherein the Tribunal held as under:
“8. Next comes the assessee’s second substantive argument that since the Assessing Officer had framed his regular assessment involving limited scrutiny on the above stated issues not including sec. 33AB deduction to the purpose of the impugned withdrawals. We find that the same is duly covered in its favor as per this tribunal’s co-ordinate bench’s decision in in Sanjeev K. Khemka vs. Pr. Commissioner of Income-Tax-15, Kolkata decided on 02.06.2017 as under:-
“4. We have heard the rival contentions of the parties and perused the materials on record. The primary issue in the case on hand revolves whether it is a case selected under CASS for limited scrutiny or regular scrutiny. It can be seen from the grounds of appeal that the assessee wants to contend that the very initiation of proceedings u/s 143(3) of the Act on the basis of regular scrutiny under the Act was bad in law. The proceedings under section 143(3) of the Act should have been limited to the extent of the information gathered through AIR. Accordingly the proceedings u/s 263 of the Act cannot be expanded beyond the issue raised in AIR. Thus the order u/s 143(3) of the Act beyond the points of AIR is invalid in law and so the same is with the order passed u/s 263 of the Act. It is the further contention of the assessee that in the items which are not subject matter of AIR cannot Assessment Year:2015
16. Spotlight Vanijya Ltd. subject matter of scrutiny. Such matters include salary of the assessee, loans & interest on loans, payment of LIC, Commission & brokerage income etc. It is the case of the assessee that in the assessment order passed u/s 143(3) of the Act, the AO has travelled beyond the points of the AIR on the basis of which the case of scrutiny was selected under CASS module. It is the plea of the assessee that when no addition/disallowance can be made beyond the points mentioned in AIR in the assessment proceedings then same is the case with proceedings initiated u/s 263 of the Act.
9. This tribunal’s yet another decision in in Sri Hartaj Sewa Singh vs. DCIT,(IT),Circle1(1), Kolkata decided on 27.04.2018 also decides the instant issue in assessee’s favour on identical reasoning. We conclude in these facts and circumstances that the PCIT has erred in law and on facts in holding the impugned assessment as erroneous causing prejudice to the interest of Revenue on the ground which nowhere formed subject-matter of the CASS scrutiny as it is evident from the case records. We reiterate the learned co-ordinate bench’s detained reasoning hereinabove that the sec. 263 revision proceedings ought not to have been set into motion for expanding the jurisdiction of the Assessing Officer to examine the issues beyond the scope of limited scrutiny. We therefore reverse the PCIT’s action assuming sec. 263 revision jurisdiction in these facts and circumstances.”
In the light of the discussion and case laws (supra), we are inclined to hold that the very initiation of revisional proceedings by issue of SCN dated 13.01.2020 by Ld PCIT itself is bad in law and therefore it deserves to be quashed and we order accordingly. Consequently all further actions/proceeding including the impugned order of Ld. PCIT is null in the eyes of law.
In the result, the appeal of the assessee is allowed.
Order is pronounced in the open court on 9th April, 2021.
Sd/- Sd/- (J. Sudharkar Reddy) (A. T. Varkey) Accountant Member Judicial Member Dated: 09.04.2021 RS Assessment Year:2015-16 Spotlight Vanijya Ltd. Copy of the order forwarded to:
1. 1. Appellant- Spotlight Vanijya Ltd., 2, Red Cross Place, BBD Bagh, Kolkata-1.
2. Respondent – PCIT-2, Kolkata 3. The CIT(A)- , Kolkata (sent through e-mail) 4. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)