ORRA FINE JEWELLERY PVT. LTD. (FORMERLY KNOWN AS M/S. INTER GOLD GEMS PVT. LTD.),MUMBAI vs. PRINCIPAL CIT CENT. CIR. 46, MUMBAI

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ITA 2328/MUM/2016Status: DisposedITAT Mumbai03 November 2017AY 2008-096 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the PCIT erred in invoking Section 263 as the issues raised by him were not part of the original Section 153A assessment proceedings. Following the Bombay High Court's decision in M/s Murli Agro Products Ltd., the Tribunal cancelled the PCIT's order.

What were the facts?

The assessee's assessment under Section 153A was set aside by the PCIT under Section 263, citing bogus purchases and lack of inquiry by the AO. The assessee argued that no incriminating material was found during the search in its premises and it had not made purchases from the alleged parties.

What were the issues?

Whether the PCIT can invoke Section 263 to direct a de novo assessment on issues not considered or unearthed during the original Section 153A assessment proceedings following a search.

Which sections of the Income-tax Act were involved?

Section 263,Section 153A,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “C” MUMBAI

Before: SHRI JOGINDER SINGH & SHRI N.K. PRADHAN

For Appellant: Mr. Nitesh Joshi, AR
For Respondent: Mr. H.N. Singh, DR
Hearing: 22/08/2017Pronounced: 03/11/2017

ORDER PER N.K. PRADHAN, A.M. This is an appeal filed by the assessee. The relevant assessment year is 2008-09. The appeal is directed against the order u/s 263 of the Income Tax Act 1961, (the ‘Act’) dated 28.03.2016 passed by the Principal Commissioner of Income Tax (Central) – 4, Mumbai (hereinafter referred as ‘PCIT’).

2.

The grounds of appeal

filed by the assessee read as under:

1. Learned Commissioner of Income-tax erred in invoking the jurisdiction under section 263 of the Act and setting aside the assessment made under Section 153A r.w.s. 143(3) of the Act. The Learned Commissioner of Income-tax further erred in holding that the Assessing Officer while framing the assessment under Section 153A r.w.s. 143(3) of the Act did not carry out any further enquiries/necessary verification to ascertain the genuineness of the purchases. It is submitted that the assessment order passed under Section 153A r.w.s.143(3) of the Act is in accordance with the law, is not erroneous or prejudicial to the interest of the revenue. The conclusions arrived at by the learned Commissioner of the Income-tax is erroneous and contrary to the facts. The order under Section 263 of the Act is without jurisdiction, bad in law and to be cancelled.

3. Briefly stated, the facts of the case are that the assessee filed its return of income for the AY 2008-09 on 30.09.2008 declaring total income of Rs. Nil. The said return was selected in scrutiny and the assessment was completed by the Assessing Officer (AO) u/s 143(3) on 24.12.2010. The total income was assessed at Rs. Nil. The additions made in the said return were deleted by the CIT(A). The appeal filed by the Revenue against the order of the CIT(A) was dismissed by the ITAT. A search and seizure action was carried out by the Revenue u/s 132 at the residence and business premises of Rosy Blue (India) Group on 25.08.2011. The assessee was also covered in the said search action. Consequent to the search, the AO issued notice u/s 153A on 11.12.2012. In response to it, the assessee filed its return of income on 30.01.2013 declaring total income of Rs. Nil. The AO after verification made the assessment u/s 153A r.w.s. 143(3) on 31.03.2014 as under: Particulars Amount (Rs.) Business Income 62,32,333/- Less: Unabsorbed Depreciation (62,32,333/-) of Earlier Years Total Income Nil 4. The PCIT initiated proceedings u/s 263 by issuing a show cause notice dated 02.03.2016. The points raised by the PCIT were (i) on perusal of records, it is seen that the assessee company had made bogus purchases to the extent of Rs.60,56,006/- by way of accommodation entries from the concerns controlled and operated by Shri Rajendra Jain, Shri Sanjay Choudhary and Shri Dharmichand Jain Group. The information to this effect, consequent to the search & seizure action conducted by the Investigation Directorate, Mumbai on 03.10.2013 in the case of Shri Rajendra Jain, Shri Sanjay Choudhary and Shri Dharmichand Jain Group is placed on record and (ii) the AO had not made any inquiry/verification with regard to the purchases. The assessee filed a reply before him which has been extracted at para 3 of the above order. The initial objection raised by the assessee was that during the course of search in its case, no incriminating material was found. The assessee also submitted before the PCIT that it has not made purchases from the above parties. However, the PCIT was not convinced with the reply of the assessee as the AO did call for the list of party wise purchases but did not carry out any further inquiry/verification to ascertain the genuineness of those purchases. Therefore, he set aside the order of the AO on the above issue with a direction to make de novo assessment.

5.

Before us, the Ld. counsel of the assessee relies on the decision in the case of CIT vs. M/s Murli Agro Products Ltd. (ITA No. 36 of 2009) and CIT vs. Continental Warehousing Corporation (ITA No. 523 of 2013) by the Hon’ble Bombay High Court.

6.

On the other hand, the Ld. DR supports the order passed by the PCIT.

7.

We have heard the rival submissions and perused the relevant materials on records. We find that a similar issue arose in the case of M/s Murli Agro Products Ltd. (supra). In that case the assessment order for the AY 1998-99 was passed u/s 143(3) on 29.12.2000 determining the loss of Rs.43,02,246/-. Thereafter, on 03.12.2003, there was a search action at the business/office premises of the assessee wherein several incriminating documents/articles were seized. On issuance of notice u/s 153A dated 13.09.2004, the respondent-assessee filed return of income on 29.08.2005 declaring loss of Rs.46,45,338/-. Thereafter, the AO passed an order on 30.03.2006 u/s 153A r.w.s. 143(3) determining the concealed income at Rs.89,19,477/-. On appeal filed by the assessee, the Commissioner of Income Tax (Appeals) by his order dated 30.11.2006 deleted the concealed income computed by the AO on 30.03.2006. The Commissioner of Income Tax passed an order u/s 263 on 04.10.2007 on the ground that (i) the total income computed in the assessment order passed u/s 153A after giving effect to the order of

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