STARX CREATIONS PRIVATE LIMITED,MUMBAI vs. PR.CIT-8, MUMBAI

This appeal has been filed by the assessee against the order dated 28.03.2018 passed by the Pr. Commissioner of Income Tax -8 (for short ‘the Pr. CIT), Mumbai, u/s 263 of the Act pertaining to the assessment year 2009-10, whereby the Ld. Pr. CIT has set aside the assessment order passed by the AO u/s 143 (3) r.w.s. 147 of the Income Tax Act, 1961 (for short the ‘Act’) and directed the AO to pass assessment order afresh after giving opportunity of being heard to the assessee.

In this case, the assessee filed its return of income for the assessment year under consideration declaring loss of Rs. 1,92,15,942/-. The assessment was completed u/s 143 (3) of the Act accepting the return filed by the assessee. The assessment was reopened and assessment order u/s 143 (3) r.w.s. 147 of the Act was passed on 11.03.2016, determining the total loss at Rs. 1,91,25,942/-. Assessment Year: 2009-10

The Ld. Pr. CIT noticed that the assessee had debited purchase of Rs. 3,95,20,000/- from M/s Osian’s Art Fund Contemporary (Fund-OAFC) and in its reply to notice u/s 133 (6) M/s Osian’s Art Fund Contemporary had showed sales under three different accounts (a) M/s Strax Creation Private Limited (Sales) of Rs. 4,44,60,000/- inclusive MVAT, Net sales 3,95,20,000/- (exclusive MVAT) ; (b) Starx Creation (Agent- OCAPL) of Rs. 1,86,85,125/- (inclusive MVAT) Net Sales of Rs. 1,66,09,000/- (exclusive MVAT ) and (c) Starx Creation Pvt. Ltd. (Agent OCAPL) of Rs. 72,11,250/- (inclusive MVAT), Net Sales of Rs. 64,10,000/- (exclusive MVAT), therefore, the assessee had not shown purchase amounting to Rs. 1,86,85,125/- and Rs. 64,10,000/- in its books of account.

Further, M/s Osian’s Art Funds Contemporary in its reply to notice u/s 133 (6) of the Act shown purchase from Starx Creation Pvt. Ltd. –P (Agent- OCAPL) of Rs. 1,62,81,250/-, however, the assessee had shown nil sales to M/s Osians Art Fund Contemporary.

Similarly, the assessee had debited purchase of Rs. 6,06,63,512/- from M/s Osian’s Connoisseurs of Arts Pvt. Ltd. (OCAPL) while as per the ledger submitted in response to notice u/s 133 (6) of the Act the company had shown sales under two different accounts i.e. (a) OCAPL-Mumbai Starx Creation Pvt. Ltd. of Rs. 3,84,86,252/- (inclusive VAT) and (b) OCAPL-Delhi Starx Creations Pvt. Ltd. of Rs. 2,79,42,720/- (inclusive VAT). Thus total Sales as per OCAPL comes to Rs. 6,64,28,972/- (inclusive VAT) and Rs. 28,16,472/- (Exclusive VAT). During the re- assessment proceedings, the assessee submitted that the purchase of Rs. 21,52,960/- was debited in the next year i.e. F.Y 2009-10. 6. In view of the aforesaid observations, the Ld. Pr. CIT issued notice to the assessee company to show cause as to why the assessment order dated 11.03.2016 should not be revised u/s 263 of the Act. In response to the said notice, the authorized representative of the assessee appeared before the Ld. Assessment Year: 2009-10 Pr. CIT submitted written reply dated 23.03.2018 contending that the discrepancies pointed out have been addressed and clarified during the assessment/reassessment proceedings. The AR further submitted that since the AO has passed the assessment order after examining the documents produced by the assessee, the assessment order is neither erroneous nor prejudicial to the interest of the revenue to revise the same u/s 263 of the Act.

However, the Pr. CIT rejecting the contention of the assessee set aside the assessment order exercising jurisdiction u/s 263 of the Act and held that the order of the AO is erroneous as well as prejudicial to the interest of the revenue and directed the AO to make the assessment de novo.

The assessee has challenged the impugned order passed by the Ld. Pr. CIT on the following effective grounds:- “1. On the facts and circumstances of the case, the order passed by the Ld. Commissioner of Income Tax u/s 263 of the Act is bad in law, void ab initio without jurisdiction. 2. On the facts and circumstances of the case, the order passed u/s 263 of the Act by Ld. CIT may be quashed and set aside on the ground that the Ld. CIT did not consider the argument taken by the appellant that the order passed by the AO u/s 143 (3) r.w.s. 147 of the Act is neither erroneous nor prejudicial to the interest of the revenue. 2.1 The Ld. CIT ought to have held that the order passed by the AO was neither erroneous nor prejudicial of the interest of Revenue in respect of the following issues in the light of details/documents and submission made before him during the assessment proceedings: Alleged purchases from Osians’ Art fund Contemporary (OAFC) amounting to Rs. 1,86,85,,125/- and Rs. 72,11,250 which did not relate at all to the appellant company and instead were transactions between OAFC and its group concern Osian Connoisseurs of Art Pvt. Ltd. (OCAPL). Alleged sales to Osians’ Art Fund Contemporary (OAFC) amounting to Rs. 1,62,81,250 which did not relate at all to the appellant company and instead were transactions Assessment Year: 2009-10 between OAFC and its group concern Osian Connoisseurs of Art Pvt. Ltd. (OCAPL). Purchases of Rs. 21,52,960 from Osian Connoisseurs of Art Pvt. Ltd. (OCAPL) which were duly reflected in the appellant’s books in the next year.”

Before us, the Ld. counsel for the assessee reiterated the contention of the assessee raised before the Ld. Pr. CIT and submitted that the alleged purchases from Osian’s Art Fund Contemporary amounting to Rs. 1,86,85,125/- and Rs. 72,11,250/- did not relate to the assessee company but the same pertain to OACF and its group concern Osian Connoisseurs of Art Pvt. Ltd. Similarly, the alleged sales to Osian’s Art Fund Contemporary amounting to Rs. 1,62,81,250/- also did not relate to the assessee company and in fact these transactions were between Osians Art Fund Contemporary and its group concern Osian Connoisseurs of Art Pvt. Ltd. and the purchases of Rs. 21,52,960/- from Osian Connoisseurs of Art Pvt. Ltd. were reflected in the appellants books in the next year.

The Ld. counsel further submitted that the AO has examined the said issues in detail during assessment proceedings/reassessment. The AO invited our attention to page 35 and 36 in the paper book, which is the copy of reasons recorded by the AO for reopening of assessment, vide which the AO had pointed out the discrepancies, on the basis of which he formed a belief that income chargeable to tax has escaped assessment. The Ld. counsel further invited our attention to copy of reply dated 13.01.2016 filed by the assessee in response to the reasons recorded for reopening of the assessment. The Ld. counsel further pointed out that the assessee has submitted the details showing the purchases from various parties, the amount as per assessee, the amount as per party, the difference the amount of sale, profit earned and the details of documents to substantiate the transactions including the transaction with Osian Art Fund Contemporary and Osian Connoisseurs of Art Pvt. Ltd. The Ld. counsel further pointed out that the assessee has also submitted reconciliation of the transaction with Osians Connoisseurs of Art Pvt. Ltd., Assessment Year: 2009-10 copy of which is available at page 49 of the Paper Book. The Ld. counsel invited our attention to the copy of letter dated 07.03.2016 submitted by the assessee to the AO summarizing the discrepancies arising out of the books of the assessee and the books of the parties. The Ld. counsel invited our attention to para 5 of the assessment order passed u/s 143(3) read with section 147 of the Act which reads as under:- “5. In the case of Kushhii the difference of Rs. 5vLacs was explained that the amount being VAT input was directly debited to the VAT Account and purchase amount was taken to purchase account. Similarly, in respect of Vithal Arts the complete reconciliation with respect to purchases and stock details and reconciliation of Sajjan Art Gallery and all other parties/sellers were submitted. The Major difference appearing in Osians Connoisseurs of Art Pvt. Ltd and Osians Contemporary Art Fund was tallied and explained.”

In the light of the aforesaid facts, the Ld. counsel submitted that since the impugned order passed by the Ld. Pr. CIT is contrary to the law laid down by the Hon’ble Bombay High Court in the case of CIT vs. Nirav Modi 390 ITR 292, MOIL Ltd. vs. CIT 396 ITR 244, law laid down by the Hon’ble Delhi High Court in the case of CIT vs. Kalvinator of India Ltd. 256 ITR 1 and the decision of the Mumbai Tribunal in the case of M/s. Indus Best Hospitality and Realtors vs. Pr. CIT, dated 19.01.2018, the same is liable to be quashed.

On the other hand, the Ld. Departmental Representative (DR) vehemently supporting the order passed by the Ld. Pr. CIT submitted that since the assessee has failed to explain the discrepancies properly and further failed to file proper reconciliation, the Ld. Pr. CIT has rightly revised the assessment order under section 263 of the Act and directed the AO to pass the assessment order afresh in the light of the observations made in the order.

We have heard the rival submissions and perused the material on record including the cases relied upon by the authorities below and the Ld. counsel Assessment Year: 2009-10 for the assessee. The assessee has challenged the impugned order on the ground that the impugned order has been passed without considering the submissions made by the assessee and without taking into consideration the findings of the AO in the assessment order passed u/s 143 (3) r.w.s. 147 of the Act. In response to the show cause notice issued by the Ld. Pr. CIT, the assessee made a written submission, which reads as under:-

As pointed out by the Ld. counsel since Fund OAFC has confirmed net sales of Rs. 3,95,20,000/- to the assessee company, there is no discrepancy in Assessment Year: 2009-10 this transaction. Further the Ld counsel has demonstrated on the basis of copies of ledger account of company OCAPL, confirmation of Fund- OAFC invoices raised by the Fund-OAFC in the name of company OCAPL and the confirmation given by Fund-OAFC, that the transaction of sale amounting to Rs. 1,86,85,125/- was between Fund– OAFC and company OCAPL, the same did not pertain to the assessee. The Ld counsel has further demonstrated that the sales transaction amounting to Rs. 72,11,250/- (Net sales Rs. 64,10,000/-) was between Fund-OAFC and company OCAPL on the basis of the ledger account of the company OCAPL in the books of Fund-OCAF, confirmation of Fund-OCAF in the books of company OCAPL, sample invoices raised by Fund- OCAF in the name of company OCAPL and confirmation given by Fund-OAFC that the transactions were with the company OCAPL and the name of the appellant was only for identification. (The copies of these documents are available in the paper book submitted by the assessee.) 14.1. Further, the Ld. counsel has demonstrated that the transaction of purchases of Rs. 1,62,81,250/- (the correct amount of Rs. 1,64,81,250/-) was between Fund-OAFC and company OCAPL on the basis of the copy of ledger account of the company OCAPL in the books of Fund-OAFC , confirmation of OAFC in the books of the company OCAPL, invoices raised by Fund-OAFC in the name of the company OCAPL, confirmation given by Fund-OACF that the transaction were with the company OACPL and the name of only for identification purposes.

Similarly, the Ld. counsel has demonstrated that the purchase debited by the appellant amounting to Rs. 6,06,63,512/- instead of Rs. 6,28,16,472/- from company OCAPL, the contention of the assessee is that the purchases made pursuant to bill dated 21.03.2009 were debited in the year 2010-11 by the assessee as the bill was received late on the basis of ledger on account of the company OCAPL in the books of the assessee, bills raised by the company OCAPL in the name of the appellant, financial statements of the appellant for the AY 2010-11. Assessment Year: 2009-10

We further notice that all these issues have been raised by the AO during the assessment/reassessment proceedings and the AO after examining the documents produced by the assessee, passed the assessment order u/s 143 (3) r.w.s 147 of the Act. As pointed out by the Ld. counsel in the case of the Commissioner of Income Tax vs. Nirav Modi (supra), the Hon’ble Court has held that the power of revision u/s 263 of the Act is normally exercised in case of no enquiry and not in the cases of inadequate enquiry. It is not permissible to the Commissioner of Income Tax while exercising power u/s 263 of the Act to remit the issue to the AO for re-examination and finding out whether earlier order of assessment is erroneous. In the said case, the Hon’ble High Court dismissed the appeal filed by the department against the order of the Tribunal cancelling the order passed u/s 263 holding that since the satisfaction of the AO was on the basis of documents produced by the assessee to substantiate its claim and the Ld. Commissioner did not point out as to how the order of the AO was erroneous or passed on incorrect assumption of fact of application of law, which resulted in loss of revenue, the order passed by the Commissioner of Income Tax u/s 263 of the Act is not sustainable. Similarly, in the case of MOIL Ltd. vs. CIT (supra), the Hon’ble High Court set aside the findings of the Tribunal holding that the Assessing Officer is not expected to raise more queries if he was satisfied about admissibility of claim on the basis of material and details supplied by the assessee.

In the case of M/s Indus Best Hospitality and Realtors Pvt. Ltd. vs. Pr. CIT (supra), the coordinate Bench has held the order passed by the Pr. CIT u/s 263 of the Act on the ground that the AO has not conducted proper enquiry, is bad in law by following the ratio of law laid down by the Hon’ble Bombay High Court in the case of CIT vs. Nirav Modi (supra) and the decision of the Hon’ble Delhi High Court in the case of Goetze India Ltd. 361 ITR 505. 18. In the present case, the AO has already raised the issues in question and the assessee responded the same by submitting various documents explanations and clarifications and after going through the same and after due application of mind, the AO passed the assessment order u/s 143 (3) r.w.s. 147 Assessment Year: 2009-10