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Income Tax Appellate Tribunal, BENCH ‘C’ KOLKATA
Before: Hon’ble Shri J.Sudhakar Reddy, AM & Shri A.T.Varkey, JM ]
ORDER PER J.SUDHAKAR REDDY, AM:
All these appeals are filed by the Assessee directed against separate but identical orders passed by the Principal Commissioner of Income Tax, Central-1, Kolkata u/s 263 of the Income Tax Act, 1961 (Act) for A.Y.2009-10, 2010-11, 2011- 12 and 2012-13, wherein the orders passed by the AO u/s 153A r.w.s. 143(3) of the Act dated 31.03.2015 were revised.
As the issues arising in all these appeals are common, for the sake of convenience they are heard together and disposed off by way of this common order.
3. The facts in brief are that the assessee is company and is engaged in the business of manufacturing of iron and steel having its plants at Vill-Gokulpur, Kharagpur, Dist West Medinipur, West Bengal and Vill-Mathurakismat, Kharagpur, Dist West Medinipur, West Bengal.
A search and seizure operation u/s 132 of the Act was conducted on the assessee on 18.02.2013. Notice u/s 153A of the Act was issued to the assessee on 08.05.2014 for all the impugned assessment years. In response to the notices u/s 153A of the Act the assessee filed its return of income. The AO passed an order u/s 153A to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 2 r.w.s. 143(3) of the Act on 31.03.2015 for A.Y.2009-10, 2010-11, 2011-12 and 2012- 13.
The ld. Pr. CIT, Central-I, Kolkata issued a show cause notice u/s 263 of the Act on 28.02.2017 proposing to initiate proceedings u/s 263 of the Act, on the points mentioned in the said notice.
The said points are as follows :-
“2. Scrutiny of assessment record reveals that you have claimed deduction u/s 801A(4) for your Private Railway Sidings. It appears that you have developed and owned two private sidings situated from Nimpura to Gokulpur in West Bengal and Barajamda to Barbil in Odisha and that you have entered into two separate agreements with South Eastern Railways. Perusal of agreements reveals the following: :
(i) The private siding was not an infrastructure facility of Public Utility. Rather those were simply private facility and provided to facilitate the transportation of your goods from/ to your plant site to/from the destination/originating point.
(ii) The agreements were entered for constructing the private railway sidings' for catering your business requirement. Further, by those agreements the railway did not allow you to operate any rail system on those private sidings. The agreement was not at all for developing, operating and maintaining any public utility rail system in between the serving station and plant site.
(iii) The transportation of the goods is being done by the railway department through its own goods train from and upto the plant site. (iv) Indian Railways operates the rail system on the private sidings by levying freight and all other charges like siding, placement and withdrawal charges on traffic booked and required by you from and to the siding as per Railway Administration's Rules.
It is further observed that you have earned the entire revenue from railway siding operation from your own divisions and related concerns.
Thus, from above, it is seen that you have developed and at that time maintaining and operating the Private Railway Siding for your own personal benefit and thus the infrastructure facility was inaccessible to the general public and hence the infrastructure developed by you was not of general public utility. However, you were not contributing anything to the development of Infrastructure sector of the country as a whole but you have claimed deduction u/s 80lA(4) for your Private Railway Sidings though there is no such provision in to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 3
the Act which extend the benefit u/s 80IA for any Private Railway Sidings. Hence, an amount of Rs.17,62,41,550/- is required to be disallowed while arrive at the total income while passing order u/s 153A/143(3) dated 31.03.2015 in your case, thereby rendering the Assessment Order dated 31.03.2015, erroneous in so far as it is prejudicial to the interest of revenue.”
In response to the said notice the assessee filed a detailed letter dated 10th 7. March, 2017 objecting to the proposed revision. It was contended by the assessee that :
(a) During the course of search and seizure operation conducted on 18.02.2013 no incriminating documents relating to the issue were found and seized relatable to the claim of deduction u/s 80IA of the Act and as the assessments for A.Y.2009-10, 2010-11 and 2011-12 have not abated, no disallowance can be made u/s 80IA of the Act by the AO as per law. Hence the AO’s order is in accordance with law..
(b)There was no lack of enquiry by the AO during the course of assessment proceedings on this issue. Hence it was argued that the orders in question are not erroneous or prejudicial to the interest of the revenue.
(c) On merits, it was submitted that the assessee company is entitled to claim of deduction u/s 80IA of the Act. Reliance was placed by the assessee on a number of case law.
The ld. Pr.CIT rejected the various contentions of the assessee. At para – 4(a) at page 11 and 12 of his order, he held that the certain documents had been found during the course of search and that these documents indicate that the assessee has been using the railway sidings in this business and that he was claiming deduction u/s 80IA of the Act for the same. The contention of the assessee that no incriminating material relating to the claim of deduction u/s 80IA of the Act was found during the course of search was rejected as not based on facts. The material in question as per the ld. CIT(A) is as follows :- to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 4
“From the Page-33 of the seized document marked as RCL-07, it is observed that the assessee had shown in the Profit and Loss Account – Railway Siding Income under income from sales and Service Head
From the Page-31 of the seized document marked as RCL-07, the assessee has shown expenditure on account of Hire Charge (Barbil Railway Siding) & Repairs and Maintenance (Railway siding – Barbil)
From Page 89 of seized document marked as INDA-4, it is observed that the Sr. DCM, ORE, South Eastern Railway had issued a letter to the assessee related to evasion of railway freight.”
He held that the AO allowed the claim of the assessee for deduction u/s 80IA of the Act, by solely relying on the claim made by the assessee, without enquiry. Hence he held that the order passed by the AO is erroneous and prejudicial to the interest of the revenue. He also pointed out that the AO has failed to make adequate enquiry and verification of the data base containing iron ore exported by the assessee from Paradweep Port, which was linked to the specific findings of the Special Investigating Team (SIT) on black money. On the contention of the assesee that this data base and findings of the SIT have been considered by the AO and the assessee being aggrieved the same had carried the matter before the ld. CIT(A) and that it was adjudicated by the ld. CIT(A) during the course of appellate proceedings, the ld. Pr.CIT held that the same was not examined by the ld. CIT(A) as the same was not examined by the AO. On merits, he held that, the assessee had developed and was managing and operating the railway sidings for his own benefit and not extending this infrastructure facility to the general public and as such the assessee was not contributing anything to the development of infrastructure sector of the country as a whole and hence the claim for deduction u/s 80IA of the Act was not allowable in the case of the assessee.
After observing so, he set aside the assessments to the file of the AO to examine and verify the complete data base and findings of the SIT report as well as the claim of deduction u/s 80IA of the Act.
11. Aggrieved, the assessee has raised the following grounds : to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 5
“1) That the Ld. PCIT was wrong in exercising jurisdiction u/s 263 of the I. T. Act on the order passed u/s 143(3)/153A of the I. Tax Act, on the issue of claim of deduction u/s. 80IA(4), on the assessment already completed prior to search. The above issues are not part of any incriminating document found / seized as a result of a search. As such, as per well settled law, no addition can be made u/s 143(3)/153A proceeding on the completed assessment. As such, jurisdiction u/s 263 of the Act cannot be exercised on the same. The order passed u/s 263 of the I. Tax Act needs to be quashed.
2) That without prejudice to our above ground, the AO has conducted proper enquiry. The order of the AO is not erroneous as well as prejudicial to the interest-of the revenue on the issue of claim of deduction u/s 80IA(4). As such, exercising of the power u/s 263 of the I. Tax Act is bad in law and needs to be deleted.
3) That the Ld. PCIT was wrong in alleging that deduction of Rs. 17,62,41,550/- u/s. 80IA(4) of the I.T. Act has been wrongly allowed based on his inference that the assessee had developed and at that time maintaining and operating the Private Railway Siding for its own personal benefit and thus the infrastructure facility was inaccessible to the general public. The company-has entered into agreement with Indian Railway for developing rail system. This agreement includes developing and maintaining of Loading & Unloading Station, railway tracks and overhead wires in between stations. These private sidings are maintained and operated by the company within the framework laid down by the concerned department of Central Government i.e, Indian Railways. As such, the misinterpretation of facts by the Ld. PCIT and exercising the jurisdiction u/s 263 is factually wrong and need to be quashed.
4) That the petitioner craves leave to add, alter, amend or withdraw any ground/s of appeal before or at the time of hearing.”
The grounds are common in all the appeals for the assessment years 2009-10, 2010-11 and 2011-12 but there is a variation in the figures in the appeals. For the Assessment year 2012-13 ground no.2 and 3 have been taken. Ground No.1 was not taken for the Assessment year 2012-13.
12. The ld. Counsel for the assessee reiterated the contentions made before the ld. Pr.CIT. He took the bench through the show cause notice and the detailed reply given by the assessee to the same. He argued that assessments for A.Y.2009-10, 2010-11 and 2011-12 were completed assessments which have not abated and as no to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 6 incriminating documents were found as a result of search operation u/s 132 of the Act relatable to the issue of claiming of deduction u/s 80IA of the Act, the AO could not have disallowed this claim of the assessee and consequently the Pr. CIT was wrong in holding that there was an error in the order of the A.O. which caused prejudice to the interest of the revenue. On the documents listed by the ld. Pr. CIT at page 12 of his order, he submitted that page nos 31 to 33 of RCL-07 are nothing but part of the profit and loss account of the assessee company wherein expenditure on account of hire charges, repairs and maintenance of the railway siding along with other expenditure claimed by the assessee are disclosed. He contended that this was part of the regular books of accounts and cannot be treated as incriminating material.
On page 89 of INDA-4, he submitted that the document is a letter issued by Sr. DCM, ORE, South Eastern Railway to the assessee in connection with the alleged evasion of railway freight. He pointed out that the document has been considered by the AO while passing the assessment order and an addition was made on the ground that freight has been evaded by the assessee. He submitted that the assessee has challenged these allegations of the DRM before the High Court, and that hence this is not a incriminating material. He further submits that the document has no relevance or in connection with the claim of deduction u/s 80IA of the Act.
14. He further submitted that each of the said three documents were before the AO during the course of assessment proceedings and the assessee had submitted detailed replies to the AO on the documents on queries made, copies of which are placed at pages 51A to 51M of the common paper book. He submits that the AO found these explanations satisfactory and accepted the same as part of the regular books of accounts of the assessee. He relied on a number of case laws in support of his contention that revisionary powers exercised by the ld. Pr.CIT on the facts and circumstances of the case is bad in law.
We will be referring to these case laws as and when necessary. to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 7
15. For A.Y.2012-13, he submitted that, it is an abated assessment and hence the above arguments on finding of incriminating material advanced for A.Y.2009-10, 2010-11 and 2011-12 do not apply.
16. On merits, he advanced the following arguments for all the four impugned assessment years.
He submitted that the assessee had developed two railway sidings, one from Nimpura to Gokulpur in West Bengal and another from Barajamda to Barbil in Odisha and for this purpose has entered in two separate agreements with South Eastern Railways. He pointed out that the main objection of the ld. Pr.CIT on the allowability of deduction u/s 80IA of the Act was that, those railway sidings were mainly used for private purpose of the assessee and has not used for public utility and hence cannot be treated as an infrastructure facility as per section 80IA of the Act and submitted that this is not factually correct.
He submitted that he started developing the railway sidings from A.Y.2007-08 onwards and had claimed deduction u/s 80IA of the Act and for the first time in the A.Y.2008-09, when the facility was put to use. He submitted that the AO in A.Y.2008-09 verified the claim of the assessee and allowed deduction u/s 80IA in that year as well as in the subsequent years also and that the deduction granted in the first year 2008-09 is not disturbed till date and hence it is not correct on the part of the ld. Pr.CIT to hold that proper enquiry was not made for allowing deduction u/s 80IA of the Act and also to disturb the grant of deduction u/s 80IA of the Act without disturbing the deduction granted in the first year of claim. He relied on a number of decisions for this proposition, where various benches of ITAT as well as High Courts have held that the assessee’s claim for deduction u/s 80IA of the Act was to be examined and granted in the first year and cannot be disturbed in the subsequent years.
He further drew our attention to clause 19 of the agreement entered into by the assessee with the Indian railway authorities and pointed out that the railways have a right regarding usage of the sidings for any purpose free of charge. He also filed to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 8 copies of letters wherein this facility was allowed to be used by the railways, by other concerns. Thus on facts, it was argued that, this facility is not exclusively used by the assessee alone for its business purpose but could be and is also used by other enterprises as well as by the railways itself and in that on facts the order of the CIT(A) is wrong and perverse. He further argued that even if it assumed that this facility is a captive unit of the assessee, deduction u/s 80IA cannot be denied as per law. For this proposition, he relied on a number of decisions some which are (a)M/s Tamilnadu Petro Products Ltd vs ACIT vide (2010) 338 ITR 643 (b)ACIT vs Tata Metalics Ltd vide ITA No.737 to 740 & 956 to 959 (Kol) of 2012 (c)M/s West Coast Paper Mills Ltd vs ACIT (2014) 52 taxmann.com 268 (d)ACIT vs Jindal Steel & Power Ltd vide ITA No.3257 and 3485 (Delhi) of 2005.
He prayed that the order of the Pr. CIT passed u/s 263 be quashed as bad in law.
The ld. Departmental Representative, on the other hand, strongly opposed the contentions of the assessee and submitted that, it is a case where the assessee has constructed an infrastructure facility, which is used exclusively for itself and to the exclusion of others. He submitted that it is not a public private partnership and it is of no benefit to the public on the copies of the letters filed by the assessee in support of the contentions that various third parties have utilised the facility, he submitted that the railways have permitted limited use and such temporary permission in select cases cannot be considered as allowing the public to use the facility. On the case laws cited on merits, he distinguished the judgement order of the Mumbai Bench of the ITAT in the case of JSW Steel Ltd. Vs PCIT in 4064 & 4086/Mum/2017 dated 30.11.2017 and argued that each claim has to be examined based on the agreements and facts of that case and that both the cases are distinguishable on facts. He also distinguished the judgement of the Hn’ble Bombay High Court in the case of CIT vs M/s. Ultra Tech Cement Ltd in ITA NO.6070 of 2010 as well as other decisions cited by the assessee on the ground that the facts of this case leads to a conclusion that the assessee created a facility which is not open for the public to use. to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 9
20. The ld. DR submitted that the AO has not examined this aspect of allowability of deduction u/s 80IA of the Act during the course of assessment proceedings and as there was non application of mind by the AO, the order is erroneous and prejudicial to the interest of the revenue. He relied on a number of case law in support of this proposition, which we would discuss as and when necessary.
On the issue of incriminating material not being found during the course of search, relating to the claim of deduction u/s 80IA of the Act, the ld. DR submitted that the addition of Rs.102 crores was on the disclosure made by the assessee and that even addition was made on the issue of wrong claims of railway freight. He relied on the order of the ld. Pr.CIT and submitted that the material cited by him at page -12 of his order is incriminating material found during the course of search and that this material relates to claim of deduction u/s 80IA of the Act. On query by the bench he submitted that the statement recorded was not the basis found in the impugned revision u/s 263 of the Act.
He relied on the case laws cited by the ld. Pr. CIT in his order and prayed that the order passed u/s 263 be upheld.
In reply the ld. Counsel for the assessee once again pointed out the clause which give full rights to the railways as well as the third parties who use the facility. He submitted that the agreements with railways are in standard formats and hence there is no difference in the facts of the case of the assessee and the facts of the case of JSW Steel (P) Ltd as claimed by the ld. DR. He argued that no difference on facts were pointed out by the ld. DR. He further relied on certain decision for the proposition that, the claim of deduction u/s 80IA of the Act should be examined in the 1st year of claim and that the claims made in the subsequent years should not be disturbed on the principle of consistency.
Heard rival contentions, on a careful consideration of the facts and circumstances of the case and perusal of the papers on record and the orders of the authorities below as well as case law cited, we hold as follows :- to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 10
25. For A.Y.2009-10, 2010-11 and 2011-12 the statement submitted by the assessee and not disputed by the revenue is as follows :-
Particulars Assessment Years 2009-10 2010-11 2011-12 Date of filing of 29.09.2009 14.10.2010 29.09.2011 return u/s 139(1) of the Act Returned Income Nil Rs.16,03,88,042/- Rs.28,63,29,580/- Date of Revised NA NA 30.03.2012 Return Returned Income Rs.8,42,58,348/- NA Rs.30,80,00,000/- Deduction claimed Rs.13,75,28,366/- Rs.19,37,58,406/- Rs.31,39,28,826/- u/s 80IA Date of Completion 28.04.2011 30.12.2011 - of Assessment u/s 143(3) of the Act Assessed Income Nil Rs.20,13,20,820/- - Book Profit Rs.28,53,09,613/- Rs.59,06,67,685/- - assessed u/s 115JB Deduction Allowed Rs.17,62,41,550/- Rs.19,37,58,406/- - u/s 80IA Time limit for NA NA 30.09.2012 issuance of Notice u/s 143(2) Date on which 18.02.2013 18.02.2013 18.02.2013 Search & Seizure operation was conducted u/s 132 of the Act Date of letter to 18.08.2014 03.11.2014 18.08.2014 treat the return u/s 139(1) as the return u/s 153A or Return filed u/s 153A to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 11 Date of Completion 31.03.2015 31`.03.2015 31.03.2015 of Assessment u/s 143(3)/153A Assessed Income Rs.88,73,75,956/- Rs.59,30,06,740/- Rs.1,97,75,62,511/ - Deduction Allowed Rs.17,62,41,550/- Rs.19,37,58,406/- Rs.31,39,28,826/- u/s 80IA
A perusal of the above demonstrates that the assessments for all these three assessment years have not abated. Under the circumstances, it is well settled that no addition can be made on an issue, where no incriminating material relatable to that issue was found during the course of search and seizure operations. We would deal with the case law on this issue in due course.
27. The issue before us is whether there was any incriminating material relatable to the issue of claim of deduction u/s 80IA(4) of the Act was found during the course of search, warranting a fresh adjudication of the issue, as to whether the assessee is entitled to a claim of deduction u/s 80 IA of the Act or not. The ld. Pr.CIT as well as the ld. DR on facts of this issue, have relied upon three documents i.e. Page 31, 33 of material marked as RCL-07 and page 89 of the documents marked as INDA-4. We find that page nos. 31 and 33 of documents marked as RCL-07, are the profit and loss account of the assessee for the financial year 2011-12. These final accounts are part of the regular books of accounts and financial statements of the assessee and hence can by no stretch of imagination, be held as incriminating documents or material. They are material which are part of the return of income originally filed by the assessee and examined by the AO.
28. Coming to page 89 of INDA-4, it is a letter issued by the Sr.DCM, ORE, South Eastern Railway, to the assessee, on the issue of freight evasion. These documents were the subject matter of assessments and addition has been made by the AO on this issue. The assessee has also challenged this letter in the courts of law. The addition itself was the subject matter of appeal before the ld. CIT(A). Under the to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 12 circumstances, it cannot be held that this letter is incriminating material. Even otherwise this letter is not connected with the claim of deduction u/s 80IA (4) of the Act. In fact, when the disallowance is made based on this letter the profit increase, and consequently the claim of deduction u/s 80IA(4) of the Act also increases. In fact none of these three documents are related to claim of deduction u/s 80IA(4) of the Act.
29. Moreover, we find that all these documents were examined by the AO and the assessee has replied to the queries posed by the AO on these documents during the course of assessment proceedings and the AO had accepted the replies. Thus there is no new material much less incriminating material that has been found during the course of search.
30. Hence, we conclude that there is no incriminating material found during the course of search relatable to the claim of deduction u/s 80IA (4) of the Act by the assessee.
31. The law on these facts is discussed by the Co-ordinate bench of the ITAT, Kolkata, in the case of M/s Jain Infraprojects Ltd vs DCIT in 1005/Kol/2017 dated 21.03.2018 held as follows :-
“10. This Bench of the Tribunal in the case of Lexus Motors Limited vs. Commissioner of Income Tax, Kolkata-3, Kolkata, inI.T.A. No. 744/Kol/2015,Assessment Year: 2010-11, order dt. August 25, 2017, has considered the entire jurisprudence on the issue of revisionary powers u/s 263 of the Act. This is extracted for ready reference:- “The Hon’ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 of the Act by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as below : “24. In Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of Sec.263 makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent – if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 13 but it is prejudicial to the Revenue – recourse cannot be had to Sec.263 (1) of the Act. It also held at pg-88 as follows: "The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)".
In Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial Co.Ltd. (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) as it then stood was interpreted by the Assessing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263. But the Supreme Court rejected the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; that different views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospective will not attract the provision of Sec.263.
26. In Vikas Polymers (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 is supervisory in nature; that an "erroneous judgment" means one which is not in accordance with law; that if an Income Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as "erroneous" by the Commissioner simply because, according to him, the order should have been written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the law; that to invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 14 the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision.
In Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assessee, a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the assessee for number of years with the approval of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order did not make an elaborate discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for fresh inquiry.
In Gabriel India Ltd. (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It held that the Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the account or by making some estimate himself; that the to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 15 Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure; there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in every case and start re-examination and fresh inquiry in matters which have already been concluded under law.
In M.S. Raju(15 Supra), this Court has held that the power of the Commissioner under Sec.263 (1) is not limited only to the material which was available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment.
In Rampyari Devi Saraogi(21 Supra), the Commissioner in exercise of revisional powers cancelled assessee’s assessment for the years 1952-1953 to 1960-61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the income tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the orders were pre-judicial to the interest of the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or not and whether the income tax assessed in the assessment years which were originally passed were correct or not"
From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 of the Act can be culled out: a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the Income to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 16
Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted f) Whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. g) The power of the Commissioner under Sec.263 (1) is not Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. Now we examine the following judgements. :- DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) It was held that revisionary power u/s 263 is conferred on the Commissioner/Director of Income Tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. Orders which are passed without inquiry or investigation are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue because the revisionary authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) Revenue does not have any right to appeal to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Firstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The term "erroneous" means to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 17 a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law. The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 18 collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous.
COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR As regard the submission on behalf of the Revenue that power under Section 263 of the Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exercise power under Section 263 of the Act even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. (Para 72) As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142 (1) of the Act could not have been formulated. The Assessing Officer was required to examine the return filed by the assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. (Paras 90-92, 102) COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC) A reference to the provisions of s. 263 shows that jurisdiction thereunder can be exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 19 view could be taken, were not enough to say that the order of the AO was erroneous or prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. No rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale consideration, a sum of Rs. 1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263.”
10.1. Applying the propositions of law laid down by the various Courts in these case-law, to the facts of this case, we hold as follows:-
For the Assessment Year 2008-09 & 2009-10, assessments were completed u/s 143(3) of the Act, on 31st December, 2009 and 30th December, 2011, respectively. No order passed u/s 143(2) of the Act, for the Assessment Year 2010-11. The assessee had filed his return of income u/s 139 (1) of the Act, for the Assessment Year 2010-11, on 13/10/2010. Time provided in the statute for issual of notice u/s 143(3) of the Act, for the Assessment Year 2010-11, was 30/09/2011. No notice was issued u/s 143(2) fo the Act for the Assessment Year 2010-11, to the assessee company. Hence for this year the Assessing Officer has no assessment proceedings pending before him for Assessment Year 2010-11. 11.1. Search & Seizure operation u/s 132 of the Act, was conducted on the assessee company on 25th April, 2012. Thus, the assessments for the Assessment Years 2008-09, 2009-10 & 2010-11, have not abated. The legal position in cases where the assessments have not abated is brought out by the following case-law.
The Hon’ble Jurisdictional High Court in the case of Pr.CIT vs. Salasar Stock Broking Ltd. (G.A. No. 1929 of 2016 & of 2016) dt. 24-08-2016, held as follows:- “….The learned Tribunal was of the opinion that the Assessing Officer had no jurisdiction under Section 153A of the Income Tax Act to reopen the concluded cases when the search and seizure did not disclose any incriminating material. In taking the aforesaid view, the learned Tribunal relied upon a judgement of Delhi High Court in the case of CIT[A] vs. Kabul Chawla in ITA No.707/2014 dated 28th August, 2014. The aggrieved Revenue has come up in appeal. Mr.Bagaria, learned Advocate appearing for the assessee, submitted that more or less an identical view was taken by this Bench in ITA 661/2008 [CIT vs. Veerprabhu Marketing Ltd.] wherein the following views were expressed - "We are in agreement with the views expressed by the Karnataka High Court that incriminating material is a pre- requisite before power could have been exercised under section153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances." In that view of the matter, we are unable to admit the appeal. The appeal is, therefore, dismissed.” to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 20 11.1.1. The ld. Pr. CIT, has not disputed this legal position that no addition or deletion can be made in an assessment order passed u/s 153A of the Act, unless these are based on material found and seized during the course of search in his order. The ld. D/R, has also made submissions on this legal issue that incriminating material was found during the search and that the addition can be made on the facts of this case.
This brings us to the factual issue as to whether any incriminating material was found and seized during the course of search.
13. The ld. Pr. CIT, at para 4(a) of his order, held as follows:-
“4 a The Assessee stated that there was no incriminating evidence found during the course of search operations which could be linked with the claim of deduction u/s 80 IA. In this regard, I would like to refer to Inventory of seized material bearing marks SRK- 20 and SRK-21. Page number 82 of SRK-20 contains a duly notarized affidavit of Sri Raj Kumar Chander, GM (Project) of M/s Jain Infraprojects Ltd, filed before the Government of Bihar and has claimed that the assessee IS a registered contractor of Road construction Department of Government of Bihar is also observed form seized material numbered SRK-21 [Page 99 - Part B of VAT Return], that the assessee has filed its VAT return claiming itself to be a works contractor. SRK-21 Page 89 contains Form 16-A issued to the assessee from RCD Hajipur, Government of Bihar, also clearly mentioning that the assessee has received payment as contractual receipt. Thus, records and material forming part of the incriminating evidence seized during the course of search operations u/s 132, conclusively establishes the fact that the assessee is primarily engaged in contractual jobs and is not a developer. Thus it clearly emanates from the materials seized during the course of search operations u/s 132A that the assessee is, prima facie, engaged in contractual jobs and thus, not eligible for deductions claimed u/s 80lA of the Income Tax Act, 1961. It is also observed from the contract agreement furnished by the assessee in the case of IRCON International limited that the assessee has been referred to as contractor several times in the contract agreement. Moreover the assessee has in his Return filed in response to notice u/s 153A claimed tax credit on tax deducted at source u/s 194C [TDS on contractual receipts], which clearly affirms my findings as discussed above. In this regard, the claim of the assessee that no incrementing evidence relatable to the aforementioned issue and claim of deduction u/s 80IA was found during the course of search operations, is thus, not legally tenable. The case laws relied upon by the assessee, are thus distinguishable and does not apply to the instant case.” (Emphasis ours) 14. We have examined the said material document found and seized during search. In our view, the material bearing mark SRK-20, a notarized affidavit filed before the Government of Bihar cannot by any stretch of imagination, said to be an incriminating material. The affidavit states that the assessee is a registered contractor with the Road Construction Department of Government of Bihar. We are unable to uphold the view of the ld. Pr. CIT that this affidavit is incriminating material. This document is part of the record and is filed for obtaining tenders and it reflects that the assessee is a registered contractor. Thus, we hold that this document marked SRK-20, is not incriminating document or material found during the course of search as held by the ld. Pr. CIT. Thus this finding of his is vague. As far as the material SRK-21 at page 89 & 99 are concerned, these are VAT returns of the assessee, and Form 16A issued to the assessee, certifying income tax deducted at source. We are unable to understand how a VAT return or a tax deduction at to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 21 source certificate would tantamount to incriminating material. These are part of the official assessment record and recorded in the regular books of account. Every document or books of account or statements found during search would not become incriminating material. Thus the conclusion of the ld. Pr. CIT, that these are incriminating material, is factually incorrect and bad in law.
Thus, the propositions of law extracted by us that no addition or disallowance can be made in an assessment order passed u/s 153A r.w.s. 143(3) of the Act, without any incriminating material found during the course of search u/s 132 of the Act, when applied to the facts of the case, takes us to a conclusion that the A.O. could not have made a disallowance of the claim of the assessee u/s 80- IA(4) of the Act in the assessment order passed by him u/s 153A r.w.s. 143(3) of the Act and hence the ld. Pr. CIT’s impugned order is not in accordance with law. 15.1. What the Assessing Officer could have done in an order passed u/s 153A r.w.s. 143(3) of the Act, cannot be done by the ld. Pr. CIT, in exercise of his powers u/s 263 of the Act. The claim of deduction u/s 80-IA of the Act, forms part of the regular books of the assessee and also forms part of the orders passed originally u/s 143(3) of the Act, prior to the search and seizure operation. The VAT details, the TDS certificates in Form No. 16A and the fact that the assessee is a registered contractor and had claimed deduction u/s 80-IA of the Act, were very much part of the record prior to the search & seizure operations. The Assessing Officer had considered them in his original assessment order passed u/s 143(3) of the Act, as well as the latter assessment order passed u/s 153(A) r.w.s. 143(3) of the Act. The Hon’ble Calcutta Tribunal in the following cases held as follows:- a) M/s. Sona Vets Pvt. Ltd. vs. DCIT, ITAT Kolkata in dt. 17/10/2017 "6. We have heard the rival submissions and perused the materials available on record including the paper books filed by the assessee containing the seized documents and explanations given by the assessee thereon before the Id AO and the Id CFT. It is not in dispute that as on the date of search the original assessment for Asst Year 2010-11 was completed u/s 143(3) of the Act and hence stood unabated. It is now well settled by various high courts including the Hon'ble Jurisdictional High Courts relied upon supra that the concluded assessments could be disturbed only in the event of presence of any incriminating materials found in the course of search. We find from the above explanation of various seized documents found in the course of search, there was absolutely no material much less any incriminatingmaterial, so as to disturb the earlier concluded assessment for the Asst Year 2010-1 1. Hence the Id AO had rightly not considered the aspect of deemed dividend and claim of depreciation on motor lorries at 30% while framing the search assessment u/s 153A of the Act. Moreover, we find that the assessee had given proper explanations regarding these items before the lower authorities as reproduced above. We find that the assessee had also duly explained the complete contents of the seized documents relied upon by the Id CIT in his order. In our considered opinion, those materials are not incriminating at all and are forming part of regular books of accounts of the assessee. These explanations have been completely ignored by the Id CIT while directing the Id AO to frame the assessment afresh. We hold that when an addition could not be made as per law in section 153A proceedings, then the said order cannot be construed as erroneous warranting revisionary jurisdiction UIS 263 of the Act by the Id CIT. We hold that even on merits, there is no case made out by the Id CTT for making any addition towards deemed dividend or disallowance of excess depreciation on motor lorries. In these to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 22
facts and circumstances, we find that the order of the Id CIT u/s 263 of the Act deserves to be quashed Accordingly, the preliminary ground raised by the assessee on the issue of assumption of jurisdiction u/s 263 of the Act is allowed.” b) Mls Shalimar Pellet Feeds Ltd. vIs DCIT, ITAT Kolkata in to 952/Kol/2017 dated 17.10.2017; "9. We have heard the rival submissions and perused the materials available on record including the paper books filed by the assessee containing the seized documents and explanations given by the assesee thereon before the Id. AD and the Ld. CIT. It is not in dispute that as on the date of search the original assessments for Asst Years 2008-09 to 2011-12 were completed u/s 143(3) of the Act and hence stood unabated. It is now well settled by various high courts including the Hon'ble Jurisdictional High Courts relied upon supra that the concluded assessments could be disturbed only in the event ofpresence of my incriminating materials found in the course of search. We find that there are no incriminating materials found during the course of search for the Asst Years 2008-09, 2010-11 and 2011-12 as the issues addressed by the Id CIT are only interpretation of law and based on any materials found in the search. With regard to the Asst Year 2009-10, we find from the above explanation of the assessee, there was absolutely no material much less any incriminating materials, so as to disturb the earlier concluded assessment for the Asst Year 2009-10. Hence the Id AO had rightly not considered these aspects in the assessments framed u/s 153A of the Act. Moreover, we find that the assessee had given proper explanations regarding these items before the ld CIT as reproduced above. We find that the assessee had also duly explained the complete contents of the seized documents relied upon by the Id CIT in his order. In our considered opinion, those material are not incriminating at all and are forming part of regular books of accounts of the assessee. These explanations have been completely ignored by the Id CIT while directing the Id AO to frame the assessment afresh. We hold that when an addition could not be made as per law in section 153A proceedings, then the said order cannot be construed as erroneous warranting revisionary jurisdiction u/s 263 of the Act by the Id CIT. We hold that even on merits, there is no case made out by the Id CIT for making any addition on the issues proposed in the show cause notice of, Id CIT. In these facts and circumstances, we find that the order of the Id CIT u/s 263 of the Act for the Asst Years 2008-09 to 2011-12 deserve to be quashed. Accordingly, the preliminary ground raised by the assessee on the issue of assumption of jurisdiction u/s 263 of the Act for the Asst Years 2008-09 to 2011-12 are allowed."
(c) M/s Tanui Holdings Pvt. Ltd. v/s DCIT in to 363/Kol/2015 dated 20.01.2016; “5.5. We also find that no incriminating materials were found during the search in respect of the issue of deemed dividend. Hence it cannot be the subject matter of addition in 153C proceedings in respect ofcompleted assessments. We hold that when an addition could not be made as per law in section 153C proceedings, then the said order cannot be construed as erroneous warranting revision jurisdiction u/s 263 of the Act. This addition was made based on audited accounts already available with the revenue. Hence on this count also, the addition contemplated by the Learned CIT in section 263 proceedings is not in accordance with law. Reliance in this regard placed by the Learned AR on the decision of the Bombay High Court in the case of CITvsMudi Agro Products Ltd ( ITA NO. 36 of 2009 dated 29.10.2010- Bombay HC) is very well placed............................... In view of the aforesaid findings and judicial precedent relied upon, we hold that the addition towards deemed dividend u/s 2(22)(e) of the Act in the assessments framed u/s 153C of the Act for the Asst Years 2007-08 to 2010-11 without any incriminating materials to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 23 found during the course of search with respect to those assessment years, is not warranted and held as not in accordance with law. 5.6. We hold that the Learned CIT had just entertained a belief that order passed by the Learned AO u/s 153 C of the Act is erroneous, which otherwise does not emanate from the provisions of the Act. Hence in this scenario, invoking jurisdiction under section 263 proceedings is not permissible. 5.7. Since we have decided the impugned issue of addition towards deemed dividend in favour of the assessee on facts as well as on law, we don't find it necessary to address the same issue on the ground of limitation of invoking jurisdiction u/s 263 of the Act. Hence we refrain to give our findings in this regard on the issue of limitation. 5.8. In view of the aforesaid findings, we quash the order passed u/s 263 of the Act by the Learned CIT and allow the grounds and additional grounds raised by the assessee for all the asst years.
6. In the result, the appeals of the assessee are allowed.”
Applying the propositions of law laid down by the Co-ordinate Benches of the ITAT to the facts of the case, we have to hold that the order passed by the ld. Pr. CIT, for all the three Assessment Year 2008-09, 2009-10 & 2010-11, is bad in law.”
Respectfully following the propositions of law as discussed and applied in the above case law, we uphold the contentions of the assessee that order passed u/s 263 of the Act for A.Y.2009-10, 2010-11 and 2011-12 are bad in law as no incriminating material relatable to the claim of deduction u/s 80IA(4) of the Act was found during the course of search and as the assessments have not abated and are completed assessments.
Coming to the merits of the case of allowability of deduction u/s 80IA (4) of the Act, we find that the ld. Pr.CIT has categorically held that at page 16 of his order that the claim of deduction u/s 80IA (4) of the Act, in respect of providing railway sidings claimed by the assessee, was not allowable under the facts and circumstances of the case. When such categorical findings, is given by the ld. Pr. CIT, there is nothing left for the AO to adjudicate though the Pr. CIT at the last para of his order directed the AO to pass a fresh assessment order after giving the assessee adequate opportunity. The finding in law by the Pr. CIT has a binding effect on the AO. Hence we have to examine the validity of such finding of the ld. Pr. CIT. to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 24
The only ground on which the ld. Pr. CIT holds that the assessee is not entitled to claim deduction u/s 80IA (4) of the Act is that, the infrastructure facility in question is not used by the public at large but by the assessee only for its business.
Section 80IA(4) of the Act reads as follows :-
80IA(4) This section applies to – (i)Any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining] any infrastructure facility which fulfils all the following conditions, namely :- (a) It is owned by a company registered in India or by a consortium of such companies [ or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act;] (b) It has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; ] (c) It has started or starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995;”
A plain reading of the section does not demonstrate that there is a condition that the infrastructure facility in question, should be open for use of the public at large. The ld. Pr.CIT relies on the explanatory notes to the provision of the Finance Act, 2007 vide Circular No.3/2008 dated 12.03.2008, which is extracted at page 15 of his order. The Circular no way states that the infrastructural facility should be available to the public at large for use and cannot be used solely and exclusively by the developer of the facility. The emphasis of this circular is that, deduction will not be available for persons who merely execute civil construction works or any other works contract. The ld. Pr.CIT cannot lay down or read into the Act conditions which are not stated therein. There is no dispute that the facility is an infrastructural facility. There is no dispute that there is an agreement with the Central Govt and that the facility started operation and maintenance after 1.4.1995. Hence in our view all the conditions are satisfied. to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 25
Be it as it may, clause -19 of the agreement between the assessee company and the railways reads as follows :-
“19. .Railway Administration's Rights regarding use of the siding: - In addition to any other rights, powers and liberties herein provided for, the Railway Administration shall have the following rights, -powers and liberties, over and in connection with the siding or any extension or part thereof, namely-
(a)To use the siding or any extension or part thereof for any purposes' of the Railway Administration free of charge or any remuneration to the Applicant in respect of such use
(b)To connect or allow to be connected with the siding or any extension or part thereof any other siding or sidings branching or extending there from which may have been constructed or which may hereinafter be constructed by or under the authority of the Railway Administration for any other person or persons whomsoever or for the purpose of the Railway Administration and to make or allow such alterations as may be necessary to effect such connection.
(c)To use or to permit the use of the siding or any extension or part thereof for the traffic if any person -or persons other than the Applicant and to work traffic over the siding or any extension or part thereof to and from any other siding or Sidings or branches or extensions there from which may be constructed as aforesaid jointly with the traffic of the Applicant upon payment by such person or persons to the applicant of either such portion of the cost originally paid by the Applicant to the Railway Administration, m respect of the land and sub-grade work or such tollage for such use as aforesaid as shall be decided by the General Manager for the time being of the Railway Administration or such other Officer as may be nominated by him whose decision shall be final, conclusive and binding on the Applicant as to whether a portion of the aforesaid cost shall be payable and if so, the amount thereof or whether a tollage shall be payable and if so, the amount or rate thereof. The Railway Administration shall collect such proportionate cost on behalf of the Applicant' but shall not be responsible for collection of tollage for and on behalf of the Applicant, but the Applicant may enter into agreement' with the person or persons who has/have been permitted the use of Siding or part thereof by the railway Administration on the payment by the latter of tollage.”
38. The assessee also filed letters as evidence that M/s. Rashmi Cement Pvt. Ltd and M/s. Orissa Metaliks Pvt. Ltd have for certain periods, have used the railway sidings of the assessee. Hence on facts, the infrastructure facility developed by the assessee could be used by persons other than the assessee. Thus on facts also in our to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 26 view the ld. Pr. CIT is in error in holding that the infrastructure facility cannot be used by any other persons than the assessee.
39. In any event, the issue in question is covered in favour of the assessee and against the revenue that the decision of ITAT Mumbai Bench in the case of JSW Steel Ltd vs PCIT in 4064 & 4086/Mum/2017 dated 20.11.2017 wherein the tribunal held as follows :-
"13. Learned Counsel for the assessee submitted that Ld PCIT has pointed out that to claim deduction u/s 80IA(4) of the Act, assessee should have an agreement with the Govt. to develop, Operate and maintain any infrastructure facility and in the case of assessee there is no operation and maintenance of the Railway sidings. In this regard, earned Counsel for the assessee submitted that finding of the Ld. PCIT is not correct as the assessee has developed and agreement, which is reads as under: -
"Clause No. 8(b) Wherein it is mentioned net; Maintenance and other Charges for the portion of the sidings - The applicant will at their own cost and expenses in all things and to the satisfaction of the administration and if required by the railway administration under its supervision maintains in good order and repair the said portion of the siding. Such charges as may be fixed by the railway for the supervision rendered shall be paid by the applicant. "
Therefore, Learned Counsel for the assessee submitted that, it is very clear from the above clause that the assessee is bearing the expenses of maintenance of the sidings. Even otherwise he submits that the Hon'ble Bombay High Court in case of CIT v. ABG Heavy Industries Limited 322 ITR 323(Bom) has held that: -
''Deduction under section 80-IA is available to an enterprise which (i) develops; or (ii) operates and maintains; or (iii) develops, maintains and operates that infrastructure facility inasmuch as subsequent amendment to section 80-IA(4) has made it clear that three conditions of development, operation and maintenance were not intended to be cumulative in nature. "
Referring to above decision of Hon 'ble Bombay High Court he submits that, it is very clearly held that deduction is available to assessee who fulfills anyone or more activity of any infrastructure facility. Hence this proposition of Ld. PCIT is not sustainable.
The facts of the above case are identical with that of the assessee and the assessee has also a same clause in the agreement entered with the railway authorities as discussed in para 16 above. to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 27
16. With respect to the Rail System, Learned Counsel for the assessee further submits that, as apparent from the show cause notice issued u/s.263 by Ld. PCIT, the Ld CIT(A)-5 has concluded that:
a. As per para 2.3(i) of the show cause notice, Rail System developed by the assessee company is simply ''Private facility". b. As per para 2,3(ii) of the show cause notice, agreement were not for developing, operating and maintaining any Rail System. c. As per para. 2.3(v) of the show cause notice, shunting of wagons cannot be termed as operation or (of) any Rail System.
17. Dealing specifically with the reasons mentioned by the learned CIT(A) in the case of Ultratech Cements the Learned Counsel for the assessee submitted that, the word "Private Facility" does not find mention in the statue. He submits that it is trite law that law has to be read as such and no import or deletion is permissible. Therefore, to treat the "Rail System" developed by the assessee company as a private facility detrimental for determination of its status as infrastructure facility is unjustified and impermissible in law. He further submits that Ipso Facto section 80IA( 4) of the Act does not use the word private or public facility but used the word infrastructure facility. He submits that even the alleged communication from CCM South Western railway dated 24.09.2014 does not deny the fact that railway siding is an infrastructure facility and Learned CIT(A) has not quoted any part of section 80IA of the Act to substantiate his opinion. "
Thus, the said decision clearly deals with the issue that private usage of railway siding does not restrains or denies the same to be treated as an infrastructural facility for claiming deduction u/s 801A of the Act.
"19. With regard to the objection of the Ld. PCIT regarding usage of the siding by the Railway he submits that its usage for shunting or otherwise is not a condition precedent as per the provisions of section 80IA( 4) of the Act. He submits that nowhere this section says anything about the usage of rail system developed by the assessee company. Learned Counsel for the assessee referred to clause 19 of the agreement made by the assessee company with South Western railway which state as under: -
''Railway administration 's rights regarding use of the siding: In addition to any other rights, powers and liberties herein provided for, the Railway Administration shall have the following rights, powers and liberties, over and in connection with the siding or any extension part thereof, namely -(a)To use the to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 28 siding or any extension part thereof for any purposes of the Railway Administration free of charge or any remuneration to the Applicant in respect of such use"
Referring to the above clause he submits that the above mentioned clause clearly provides unhindered right to the Railway administration to use the siding i.e. Rail System developed by the assessee company for any purpose free of charge. Thus, it is submitted that assessee company has fulfilled all the requirements of law to claim the deduction u/s.80IA(4) of the Act and the then td. AO had allowed the same after verification of facts, judicial pronouncements and application of mind"
''32. We have heard-the. rival submissions, perused the orders of the authorities below and the materials placed before us. In this case, order u/s. 263 was passed by the Ld. PCIT holding that assessee is not entitled for deduction u/s. 80lA in respect of the Railway System and water supply system holding that they are not infrastructure projects. In coming to such conclusion Ld. Pr.CIT basically relied on the proceedings in the case of M/s. Ultratech Cements Limited for the Assessment Year 2009-10 and 2010-11 by the CIT -5, Mumbai wherein a view has been taken that the Claim for deduction u/s. 80IA on profit of Railway System was denied The Ld PCIT relying on the findings given in M/s.Ultratech Cements Limited for the Assessment Year 2009-10 and 2010-11 and by stating that the. CIT in that case had passed detailed order after making enquiries from the Railway Department confirming the disallowance. Therefore, Ld. PCIT is of the view that in view of the investigations made in the case of M/s. Ultratech Cements Limited and since it was held that Railway System is not entitled for the deduction u/s. 80lA· of the Act as it is not an infrastructure facility, he directed the Assessing Officer to disallow the deduction u/s. 80IA of the Act in respect of the Railway System and water supply system. We also find that the Ld.Pr CITT did not provide the information to the assessee which was gathered from the Railway Department to rebut the information gathered from the Department.
Apparently principle of natural justice has not been adhered to. We also find that the Assessing Officer called for various details in the course of Assessment Proceedings. Assessee has furnished various details as has referred to in the above paras including the order of the ITAT in the case of M/s. Ultratech Cements Limited for the Assessment Years 2004-05 s 2005-06 in & 7736/Mum/2007 dated 20.08.20009 where the similar claim was allowed i.e. deduction u/s. 80lA in respect of Railway siding was allowed and the Revenue even took up the matter before the Hon 'ble Bombay High Court and the Hon'ble Bombay High Court by order dated 02.04.2014 in ITR 6070 of 2010 refused to answer the question of law. The assessee furnished this copy to the. Assessing Officer in the course of Assessment Proceedings and the Assessing Officer after examining the details furnished by the assessee as well as the order of the ITAT to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 29 in the case of M/s.Ultratech Cements Limited (supra) for the Assessment Years 2004-05 and 2005-06 took a view that assessee is entitled for deduction u/s. 80lA of the Act in respect ot Railway sidings and water supply system. In our view, this is one of the view possible and therefore the Id. PCIT should not have hold that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of Revenue/ in view of the decision of the Hon 'ble Supreme Court in the case of CIT v.Max India' Limited [295 ITR 287} and Malbar Industries Co Ltd. v. CIT [243 FTR 83}.
33 ...........................
Learned Counsel for the assessee also took us through the agreement entered into by' the assessee in respect of the Railway System operated by it and pointed out that the clauses in the agreement are exactly identical and it is a standard agreement and since the facts and circumstances being similar the issue of deduction u/s. 80IA in respect of Railway system should be allowed in favour of the assessee. On a perusal of the agreement dated 16.01.2007 entered with South Western Railway, '. Hubli division for railway system we find clauses in the agreement are exactly identical to the agreement entered into by M/s.Ultratech Cements Limited for the railway siding in its premises. On analyzing the agreement and clauses thereon and the provisions of the Act it has been 'held by the Coordinate Bench in the case of M/s. Ultratech Cements Limited (supra) that the Railway System operated by the assessee is an infrastructure facility and entitled for the deduction u/s. 80IA of the Act .
We further find that revenues appeal against the decision of Hon 'ble ITAT in the case of M/s. Ultratech Cement Ltd. for A. Y. 2006-07 in ITA.No.6070 of 2010, has been admitted by Hon'ble Bombay High Court vide order dated 02.04.2014 on limited issue of as to whether railway siding can be treated as profit Centre or cost Centre for the purpose of determination of eligible profit. As regards revenue’s ground of. appeal against very availability of deduction u/s. 80IA in respect of railway siding the Hon 'ble High Court rejected the same holding as under:
''After hearing the counsel at some length and perusing with their assistance the order passed by the Commissioner of Income Tax (Appeals) and the income Tax Appellate Tribunal, we are of the opinion that though the appeal deserves admission but it should not be on the question of law as framed at Page 5 of the paper book. That questions the very applicability of the provision. From the findings of the Commissioner of Income Tax (Appeals), the only question which can be raised as substantial question of law and arising from the discussion on this point is whether the respondent assessee is eligible for deduction u/s. 80IA of the Income Tax Act by urging that the Rail system is not a profit Centre but a cost saving Exercise undertaken in terms of subsection (4) of section 80IA? ......” to 816/Kol/2017 M/s. Rashmi Metaliks Ltd. A.Y.2009-10 to 2012-13 30
40. Thus as regards the vel}' claim for the deduction u/s. 80JA of the Act Per se, the ITAT order can be treated as final in favour of the assessee as the Hon 'ble High Court refused to admit the question raised by the Revenue on the very applicability of the provisions of section 80JA of the Act for the Rail System. Therefore/ respectively following the said decision we hold that the assessee entitled for the deduction u/s. 80JA of the Act in respect of the railway system .
Thus, in view of what is discussed above, we hold that the assessee is entitled for deduction u/s. 80IA in respect of the Railway System and water Supply project and therefore we set-aside the orders of the Ld-PCIT passed u/s 263 of the Act for the Assessment Years 2008-09 to 2011-12.
In the result, appeals of the assessee are allowed.”
The judgment of the Hon’ble Bombay High Court in the case of M/s. Ultra Tech Cement Ltd in of 2010 has confirmed the order of the ITAT. The Hon’ble Madras High Court in the case of M/s Tamilnadu Petro Products Ltd. Vs ACIT 338 ITR 643 allowed deduction u/s 80IA of the Act where the facility was one of captive consumption. Thus even if the facility was for captive use, deduction u/s 80IA(4) cannot be denied. Thus applying the proposition of law laid down in all these case laws, in the facts of the case we hold that, on merits the assessee is entitled to claim deduction u/s 80IA of the Act. Hence we find the orders of the ld. Pr.CIT passed u/s 263 not sustainable on facts as well as in law. Thus we hold that the order of the AO in all the four assessment years 2009-10 to 2012-13, are not erroneous or prejudicial to the interest of the revenue warranting revision by the ld. Pr. CIT u/s 263 of the Act. Hence, we cancel the orders passed by the ld. Pr. CIT u/s 263 of the Act and allow all these four appeals of the assessee.
In the result all the appeals by the assessee are allowed. Order pronounced in the Court on 2nd May, 2028.