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Income Tax Appellate Tribunal, KOLKATA BENCH “C” KOLKATA
Before: Shri N.V.Vasudevan & Shri Waseem Ahmed
आदेश /O R D E R PER Waseem Ahmed, Accountant Member:- The appeal filed by the assessee is against the order of Commissioner of Income Tax-11, Kolkata dated 23.11.2016 relating to assessment year 2012-13 against the order passed u/s 263 of the Income Tax Act, 1961. Shri K.M. Roy, Ld. Authorized Representative appeared on behalf of assessee and Shri G.Mallikarjuna, Ld. Departmental Representative appeared on behalf of Revenue. 2. The assessee has raised the following grounds of appeal:- “1. That the order u/s. 263, passed in pursuance to audit objection is unsustainable in eyes of law.
2. That the Ld CIT has failed to appreciate that AO had applied his mid to the details of purchase while passing the assessment order.
Raghunath Exporters Vs. Pr. CIT, Kol. Page 2 3. That the Ld CIT has erred in coming to the conclusion that there is undervaluation in closing stock when he has misinterpreted the method of ascertainment of cost as apparent from the ground.
4. That appellant deserves right to raise additional ground during hearing.”
Solitary issue raised by assessee in this appeal is that Ld. CIT erred in holding the order of Assessing Officer passed u/s 143(3) of the Act as erroneous in so far prejudicial to the interest of revenue u/s 263 of the Act.
Briefly, the facts of the case are that assessee is a private limited company and engaged in trading business of tea. The assessee for the year under consideration filed its return income declaring total income of ₹5,90,950/- on 25.09.2012. The return of assessee was processed u/s. 143(1) on 16.02.2013 thereafter the case was selected under scrutiny and accordingly notice u/s. 143(2)/142(1) of the Act were issued upon the assessee. The assessment was framed u/s. 143(3) of the Act vide order dated 10.03.2015 after making certain additions / disallowance at a total income of ₹60,32,880/- only.
Subsequently, Ld. CIT observed that the order passed by AO u/s. 143(3) of the Act is erroneous in so far as prejudicial to the interest of Revenue on the following observations:- (1) The assessee in its profit and loss account has shown the expenses on the purchase of tea for ₹16,32,03,915/- whereas the total purchases were shown by it during assessment proceedings at ₹16,58,28,272/- only. Thus a difference of ₹26,24,357/- (16,58,28,272 – 16,32,03,915) was observed which was not taxed under the provision of law; (2) The assessee in column 20 of Tax Audit Report in Form 3CD has shown the details of opening stock, purchase, sales and closing stocks in terms of quantity as well as value. The relevant extract of Form 3CD furnished by assessee is extracted below:- Sl Particulars Weight (in kg) Value shown Rate shown in Form in the P&L No (Rs/kg) 3CD account Raghunath Exporters Vs. Pr. CIT, Kol. Page 3 1 2 3 4 5 1 Opening stock 1,00,223.940 1,39,14,705 138.84 2 Purchase 5,47,640.570 16,32,03,915 298.01 3 Sale (export + local) 5,49,088.100 16,43,91,181 299.39 of tea 4 Closing stock 98,776.410 2,27,18,574 230.00 On the basis of above Ld. Pr.CIT observed that the closing stock has been valued at ₹230 per kg for its quantity lying at the yearend i.e. 98776.410 kg. Thus, the total value of closing stock was shown at ₹2,27,18,574 (98776.510 x 230/-) whereas the purchase during the year was shown at ₹298.10 per kg. The Ld. Pr CIT further observed that in case assessee is following FIFO method then the closing stock has been undervalued by ₹67,17,784/- [98776.410 x 68.10 (298.10 – 230)]. It is because the opening stock of the valued at ₹138.84 per kg for its quantity 100223.94 kg must have been sold during the year. Accordingly Ld. Pr. CIT issued notice u/s. 263 of the Act vide dated 07.04.2016 for invoking the provision of section 263 of the Act. The assessee in compliance thereto submitted that : In relation to closing stock a) It has never valued its closing stock on the basis of weighted average cost. Therefore, the value adopted for ₹298.10 per kg for determining the closing stock is not correct. b) The closing stock in the instant case has been valued at cost on year-to-year basis consistently. The valuation of closing stock representing the actual cost incurred on the purchase of tea. c) The method of valuation adopted by the assessee has been accepted in the earlier and subsequent years by the Revenue. d) Even the valuation of closing stock is enhanced then the value of opening stock of the subsequent year would be increased accordingly and therefore the enhancement in the valuation of closing stock will have neutral revenue effect.
Raghunath Exporters Vs. Pr. CIT, Kol. Page 4 In relation to purchase; i) The difference in the amount of purchase as observed by Ld. Pr. CIT is arising on account of VAT liability incurred by it on the purchase of tea. The amount of VAT liability incurred by assessee on the purchase of tea has never been shown in the trading / profit and loss account of the assessee rather it has been adjusted against the VAT liability incurred by the assessee on the sale of tea. Therefore there is no difference arising in the amount of purchase shown by the assessee in its profit and loss account vis-a-vis details of purchase submitted during the year. However, Ld. Pr CIT disregarded the contention of assessee by observing as under:- 1) With regard to purchase there is no material available on record suggesting that the difference is arising on account of input and out-put VAT liability. 2) With regard to valuation of closing stock there is no material available on record to specify qualitative and quantitative stock-in-statement for the determination of closing stock valuation. In view of the above Ld. Pr. CIT held that the order passed by Assessing Officer is erroneous in so far as prejudicial to the interest of Revenue by observing as under:- “6. I have carefully considered the submission made on behalf of the assessee and perused the material on record. As far as the point of difference in purchase is concerned, there is nothing available on record to substantiate the reconciliation. As regard the point of valuation of stock, there is also nothing on record to specify qualitative and quantitative stock statement to arrive at a logical conclusion. The contention of the assessee that even of the closing stock of FY 2012-13 does not hold good as the valuation of stock must confirm to the accounting principles irrespective of the fact whether it is a revenue neutral exercise or not and secondly, if the closing stock is found to be undervalued, it would automatically entail that the assessee has been doing if inception of business to suppress the actual affairs of business carried on.
Raghunath Exporters Vs. Pr. CIT, Kol. Page 5 7. After having considered the position of law and facts and circumstances of the instant case, the assessment order passed by the AO is found to be erroneous and prejudicial to the interest of revenue and hence the assessment order passed by the AO is set aside in respect of both the points stated in Para-2 above. The Assessing Officer is accordingly directed to initiate fresh assessment proceedings and carry out necessary enquiries / verification and thereafter a fresh assessment order is to be passed in accordance with the relevant provisions of law.” Aggrieved by this, the assessee has come up in appeal before us.
Ld. AR for the assessee before us submitted that the proceedings u/s. 263 of the Act was initiated on the basis of audit objection and there was no application of mind of Ld. Pr CIT in ariving at the conclusion that the order of AO is erroneous in so far as prejudicial to the interest of Revenue. Ld. AR in support of assessee’s claim relied on the judgment of Hon'ble jurisdictional High Court in the case of Jeewanlal limited vs. ACIT (1929) reported in 108 ITR 407 (Cal) wherein the Hon'ble court has held:- “Further, in instant case, the Commissioner purported to exercise the power at the suggestion of the audit department. The Commissioner did not exercise his discretion and judgment. In the aforesaid view of the matter, the impugned notice issued under section 263 could not be sustained. The said notice, therefore, was to be quashed and set aside.”
Similarly, Ld. AR also relied on the judgment of Punjab & Haryana High Court in the case of CIT vs. Sohana Woollen Mills 296 ITR 238 (P&H), wherein it was held as under:- “Mere audit objection and merely because a different view could be taken, are not enough to say that the order of the Assessing Officer was erroneous or prejudicial to the interest of the revenue. The jurisdiction could be exercised if the Commissioner audit is 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 Commissioner for exercising jurisdiction is called for or not, has to be decided having regard to a given fact situation.” On the other hand, Ld. DR for the Revenue vehemently conceded the fact that proceeding u/s 263 of the Act was initiated on the basis of audit objection. The ld. DR further submitted that the commissioner is assisted by many officers, Raghunath Exporters Vs. Pr. CIT, Kol. Page 6 and for his administrative function he takes help and assistance of assistance. These officers include DCIT / ITO HQ, Inspector, Tax Assistant, Auditor etc. The report of audit party are also relevant in discharge of its functions. Thus, the commissioner can be assisted by his team and also by the Assessing Officer about any matter concerning erroneous order having been passed. 6.1 The ld. DR also submitted that as a matter of fact, any objection raised by audit wing of Income Tax Department, first of all, the Assessing Officer response to the audit query. If the audit query found maintainable then the matter is referred to the Ld. CIT u/s 263 of the Act for considerable action. Thereafter Ld. CIT calls for records and examined the facts by applying his mind. Once he considers that the order passed by the AO is erroneous in so far as prejudicial to the interest of Revenue only then he invokes the provision of u/s 263 of the Act. Thus, any action taken by Ld. CIT u/s. 263 of the Act merely on audit objection and without applying his own mind is not sustainable in the eyes of law but in the case of on hand Ld. CIT has applied his mind as he has not made any reference in his order to the audit objection raised by the Audit Wing of the Income Tax Department. Thus, Ld. CIT after verifying independently has invoked the provision of Section 263 of the Act. 6.2 Certain differences were observed form the assessment folders, therefore the action u/s. 263 of the Act was initiated. Ld. DR heavily relied on the order of Ld. Pr. CIT.
We have heard the rival contentions and perused the records. In the instant case, it is an undisputed fact that the audit objection was raised. But we note that the proceedings were not initiated merely on the basis of audit objection. It is because no reference has been made by Ld. Pr. CIT in his impugned order to the audit objection as discussed above. We rather find that Ld. Pr CIT has given categorically finding which reads as under:- “2. The assessment record of the assessee was called for and on the basis of the verification of the materials available on record, it was found that the order of assessment was erroneous in so far as it is prejudicial to the interest of revenue on the following grounds:”
Raghunath Exporters Vs. Pr. CIT, Kol. Page 7 From the above, we hold that the proceedings u/s. 263 of the Act has not been initiated on the basis of audit objection. Thus, the case laws relied by Ld. AR for the assessee is not applicable to the instant facts of the case. The Hon'ble Punjab & Haryana High Court in the case of Sohana woollen Mills (supra) has given a categorical finding that no rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the Commissioner for exercising jurisdiction is called for or not, has to be decided having regard to a given fact & situation. Similarly, we find that the principles laid down by Hon'ble High Court of Calcutta in the case of Jeewanlal Limited (Supra) are not applicable to the instant case as the ld. CIT has exercised his jurisdiction after applying his mind and not merely on the basis of audit objection. However, at this juncture we find important to reproduce the provision of sec 263 of the Act which reads as under : “Revision of orders prejudicial to Revenue. 263. (1) The [Principal Commission or] Commission may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.”