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Facts
The assessee, a banking company, filed its return for AY 2010-11, which was processed and later a scrutiny assessment was completed accepting the income. The AO later reopened the assessment after four years based on a Supreme Court decision regarding deduction u/s.36(1)(viia) for bad and doubtful debts. The assessee challenged the reopening on grounds of jurisdiction.
Held
The Tribunal held that the AO had no jurisdiction to reopen the assessment as it was done after four years from the end of the assessment year and the condition precedent under the first proviso to Section 147 of the Act (failure to disclose material facts) was not satisfied. The AO had previously inquired into the matter and accepted the assessee's claim, and reopening amounted to a review of the AO's own order.
Key Issues
Whether the reopening of assessment by the AO after four years, without satisfying the conditions laid in the proviso to Section 147, is legally valid?
Sections Cited
143(3), 147, 148, 36(1)(viia)
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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI ABY T. VARKEY & SHRI S.R.RAGHUNATHA
आदेश / O R D E R
PER ABY T. VARKEY, JM:
1. This is an appeal preferred by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)/NFAC, (hereinafter in short "the Ld.CIT(A)”), Delhi, dated 12.02.2024 for the Assessment Year (hereinafter in short "AY”) 2010-11.
At the outset, the Ld.AR of the assessee assailed the action of the Ld.CIT(A) dismissing the legal issue raised by the assessee that the AO didn’t had the requisite jurisdiction to re-open the assessment which was originally made u/s.143(3) of the Income Tax Act, 1961 (hereinafter in short "the Act”) and that too after four years from the relevant assessment year, without complying with the additional condition precedent provided for under first proviso to sec.147 of the Act.
Therefore, we take up the legal issue against the jurisdiction of the AO to re-open the assessment.
The brief facts related to the legal issue are that the assessee is a banking company and filed its return of income (RoI) on 20.09.2010 for AY 2010-11 admitting an income of ₹248,57,34,777/- which was processed u/s.143(1) of the Act on 30.03.2012, and which was subsequently selected for scrutiny and the AO accepted the income returned by assessment order dated 17.03.2013 framed u/s.143(3) of the Act. Thereafter, the AO has re-opened the assessment by issuing the impugned notice u/s.148 of the Act on 28.03.2016 (after four years from the end of the assessment year) stating the reason for re-opening as under:-
"On verification of records it is found that, the assessee had claimed deduction u/s.36(1)(viia) amounting to Rs.22,11,49,678/- in respect of advances relating to Rural and Non-Rural branches. The sec.36(1) (vila) is a provision allowable relating only to rural advances by rural branches as held by the Hon'ble Supreme Court in its Order dated 17.02.2012 in the case of M/s.Catholic Syrian Bank in Civil Appeal No.1143/2011 as reported in (2012) 18 taxmann.com 282(SC). Hence, the above sum of Rs.22,11,49,678/- is not fully eligible deduction u/s.36(1) (Vlia) of the IT Act. Therefore, I have the reasons to believe that the income chargeable to tax has escaped assessment for the Assessment Year 2010-11".
The AO thereafter passed the re-assessment order and added ₹20,63,35,975/- On appeal, the Ld.CIT(A) upheld the action of the AO which has been challenged by the assessee before us by first of all raising the legal issue that the AO didn’t had the jurisdiction to re-open the assessment of the assessee originally framed u/s.143(3) of the Act, after a period of four years without satisfying the additional condition precedent prescribed under the first proviso to sec.147 of the Act that escapement of income was due to failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
According to the Ld.AR, the legal issue raised by assessee is settled by the Hon’ble Supreme Court in the case of CIT v. Kelvinator of India Ltd., reported in [2010] 320 ITR 561 (SC), wherein, their Lordships have held that after four years from the end of relevant assessment year, the AO shouldn’t resort to re-opening of the assessment already framed u/s.143(3) of the Act without having tangible material in his possession to justify re-opening of assessment. Further, according to the Ld.AR, in the case of PCIT vs Moser Baer Ltd [2020] 114 taxmann.com 548 Dehi, their Lordships have held that if in the regular assessment, the issue for which the re-opening is being resorted to has been looked into by the AO, then, in such an event, the AO shouldn’t re-visit the same on the pretext that a binding decision has been overlooked [refer para 3]; and further pointed out that the Revenue challenged the said decision before Hon’ble Supreme Court, which was dismissed and reported in PCIT vs Moser Baer Ltd 270 Taxman 04. According to the Ld.AR, in the present case, the AO in order to reopen the scrutiny assessment dated 17.03.2013 [after four years], has cited non-consideration of the decision of the Hon’ble Supreme Court dated 17.02.2012 in the case of M/s.Catholic Syrian Bank in Civil Appeal No.1143/2011 as reported in (2012) 18 taxmann.com 282 (SC) which impugned action according to Ld AR is erroneous and legally untenable. According to Ld AR, original assessment in the present case was framed on 17.03.2013, after due enquiry by AO [on issue of allowability of provision u/s 36(1)(viia) of the Act claimed by assesse- bank] and the decision in the case of M/s.Catholic Syrian Bank was in February 2012. Therefore, the decision in M/s.Catholic Syrian Bank was in the public domain while assessment proceedings were going on/pending before AO. According to the Ld.AR, since the Hon’ble Supreme Court had passed the order in the case of M/s.Catholic Syrian Bank (supra) a year before viz., while the assessment was pending before the AO and that too after scrutiny of the return of income filed by the assessee by calling for the details regarding claim of deduction made by the assessee, i.e, provisions made on account of bad and doubtful debts to the tune of ₹22,11,49,678/- (i.e. towards bad and doubtful debts in the P & L A/c as
per provisions laid down in the RBI norms); and the AO has resorted to re-opening of assessment citing Sec.36(1)(viia) of the Act and alleged that the assessee’s claim of ₹22,11,49,678/- as deduction was not fully allowable in the light of the decision of the Hon’ble Supreme Court in M/s.Catholic Syrian Bank (supra) and for examining such a claim which is allowable only for rural advances given by rural branches of the Bank and not others i.e. rural banks, has reopened the assessment, which action of the AO was challenged by assessee before the Ld.CIT(A) and assessee raised the legal issue i.e. the AO didn’t had the jurisdiction to re-open the assessment after four (4) years without satisfying the condition precedents u/s 147 of the Act, was dismissed by the Ld.CIT(A).
According to Ld AR, the impugned action of the Ld.CIT(A) can’t be countenanced per-se for the reason that though the re-opening of assessment has been resorted to by the AO after four (4) years from the end of the Assessment Year, still the AO hasn’t spelt out in the reasons recorded (refer page 64 of PB-I) that the assessee has failed to disclose fully and truly all material facts necessary for the assessment on this issue and therefore, according to the Ld.AR, the AO having not satisfied the essential condition precedent for re-opening of assessment after four years from the end of relevant assessment year, doesn’t have the jurisdiction to re-open the assessment and therefore, it has to be quashed.
Per contra, the Ld.DR vehemently supported the action of the AO 5.
and submitted that the AO has rightly re-opened the assessment and had cited the decision of the Hon’ble Supreme Court in the case of M/s.Catholic Syrian Bank which was not considered while giving relief to the assessee regarding the claim of deduction and therefore, we should not interfere with the action of the Ld.CIT(A) upholding the re-opening of assessment.
We have heard both the parties and perused the material available on record. We note that the assessee had already undergone scrutiny in the original round of assessment u/s.143(3) of the Act on 17.03.2013 and thereafter, it is noted that the AO had issued notice dated 28.03.2016 u/s.148 of the Act conveying his desire to re-open the regular assessment on the reason that the assessee’s claim regarding provisions made for bad and doubtful debts u/s.36(1)(viia) of the Act was in excess and against the decision of the Hon’ble Supreme Court in the case of M/s.Catholic Syrian Bank (supra). However, we note that the Hon’ble Supreme Court in the case of M/s.Catholic Syrian Bank order was passed on 17.02.2012 while original assessment proceedings were in process/pending before the AO; and the AO had passed the scrutiny assessment only on 17.03.2013 (i.e. after a year and one month later). We note that the assessee has claimed deduction of provision for bad and doubtful debts u/s.36(1)(viia) of the Act and the AO during original assessment proceedings had issued notice calling for details about this claim; and pursuant to it, assessee filed details vide letter dated 13.12.2012 and AO being satisfied accepted the claim after enquiry; and in this context it is pertinent to note that the decision of the Hon’ble Supreme Court in the case of M/s.Catholic Syrian Bank (supra) was in the public domain from 17.02.2012 and the scrutiny assessment order was passed in this case on 17.03.2013, it can be safely presumed that AO was aware of the ratio of the decision while assessing the assessee-bank. Having noted that the decision of the Hon’ble Supreme Court in the case of M/s.Catholic Syrian Bank (supra) was in public domain when the original scrutiny assessment was framed, we are of the opinion that the AO ought not to have resorted to re-opening the assessment after four years from the end of relevant assessment year without satisfying the condition precedent as given in first proviso of Sec.147 of the Act i.e. without pointing out the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. In this context, when we peruse the reasons recorded by the AO to re-open the assessment (supra), we find that there is no allegations made by the AO that assessee failed to disclose any material facts on this issue, which allegation is conspicuously absent i.e. about failure on the part of assessee to disclose fully and truly all material facts necessary for the assessment. In any case, we examined as to whether the assessee in the present case has disclosed fully and truly all material facts necessary for the assessment [i.e., in respect of assessee’s claim of deduction of provision for bad and doubtful debts u/s.36(1)(viia) of the Act] which we may do by referring to the Constitutional Bench decision of the Hon’ble Apex Court in the case of M/s.Calcutta Discount Bank Ltd. v.
ITO AIR 1961 SC 372 wherein the Constitutional Bench explained what is meant by the duty of the assessee to disclose fully and truly all material facts necessary for the assessment ? And answered the same by stating that assessee is duty bound to disclose primary facts necessary for assessment/claim made in the Return of Income [RoI]. Non-disclosure of other facts, which may be termed as secondary facts, is not necessary. It would be gainful to refer to the Hon’ble Supreme Court’s observation in the case of M/s.Calcutta Discount Bank Ltd., as under:
A number of decisions have been cited as to what is meant by true and full disclosure. It is not necessary to multiply decisions, as law in this regard has been succinctly laid down by a Constitution Bench of this Court in Calcutta Discount Co. Ltd. vs. ITO AIR 1961 SC 372 wherein it was held as follows :-
“(8)…The words used are “omission or failure to disclose fully and truly all material facts necessary for his assessment for that year”. It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material, and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise — the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable. Thus, when a question arises whether certain income received by an 5 AIR 1961 SC 372 assessee is capital receipt, or revenue receipt, the assessing authority has to find out what primary facts have been proved, what other facts can be inferred from them, and taking all these together, to decide what the legal inference should be.
(9) There can be no doubt that the duty of disclosing all the primary facts relevant to the decision of the question before the assessing authority lies on the assessee. To meet a possible contention that when some account books or other evidence has been produced, there is no duty on the assessee to disclose further facts, which on due diligence, the Income- tax Officer might have discovered, the Legislature has put in the Explanation, which has been set out above. In view of the Explanation, it will not be open to the assessee to say, for example — “I have produced the account books and the documents: You, the assessing officer examine them, and find out the facts necessary for your purpose: My duty is done with disclosing these account-books and the documents.” His omission to bring to the assessing authority’s attention these particular items in the account books, or the particular portions of the documents, which are relevant, will amount to “omission to disclose fully and truly all material facts necessary for his assessment.” Nor will he be able to contend successfully that by disclosing certain evidence, he should be deemed to have disclosed other evidence, which might have been discovered by the assessing authority if he had pursued investigation on the basis of what has been disclosed. The Explanation to the section, gives a quietus to all such contentions; and the position remains that so far as primary facts are concerned, it is the assessee’s duty to disclose all of them — including particular entries in account books, particular portions of documents and documents, and other evidence, which could have been discovered by the assessing authority, from the documents and other evidence disclosed.
(10) Does the duty however extend beyond the full and truthful disclosure of all primary facts? In our opinion, the answer to this question must be in the negative. Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else — far less the assessee — to tell the assessing authority what inferences — whether of facts or law should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences — whether of facts or law — he would draw from the primary facts.
(11) If from primary facts more inferences than one could be drawn, it would not be possible to say that the assessee should have drawn any particular inference and communicated it to the assessing authority. How could an assessee be charged with failure to communicate an inference, which he might or might not have drawn?”
A careful analysis of this judgment indicates that the Constitution Bench held that it is the duty of the assessee to disclose full and truly all material facts which it termed as primary facts. Non- disclosure of other facts which may be termed as secondary facts is not necessary. In light of the above law, we shall deal with the facts of the present case.
In our view the assessee disclosed all the primary facts necessary for assessment of its case to the assessing officer. What the revenue urges is that the assessee did not make a full and true disclosure of certain other facts. We are of the view that the assessee had disclosed all primary facts before the assessing officer and it was not required to give any further assistance to the assessing officer by disclosure of other facts. It was for the assessing officer at this stage to decide what inference should be drawn from the facts of the case. In the present case the assessing officer on the basis of the facts disclosed to him did not doubt the genuineness of the transaction set up by the assessee. This the assessing officer could have done even at that stage on the basis of the facts which he already knew. The other facts relied upon by the revenue are the proceedings before the DRP and facts subsequent to the assessment order, and we have already dealt with the same while deciding Issue No.1. However, that cannot lead to the conclusion that there is non-disclosure of true and material facts by the assessee.
Having examined the records, in our view, the assessee has disclosed fully and truly all material facts i.e. the primary facts necessary for the assessment of its case to the AO (on the issue of deduction claimed u/s.36(1)(viia) of the Act). What the Revenue urges is that the assessee didn’t make any full and true disclosure of certain other facts, but couldn’t show it to be primary facts necessary/material for assessment. Therefore, we are of the view that once the assessee has disclosed all primary facts on the issue before the AO, its burden is discharged and then onus shifts to AO to accept or make further enquiry about it. And coming back to the issue for which the AO has resorted to reopening of assessment, we find that the AO during the original assessment proceedings had called for the deduction claimed by the assessee u/s.36(1)(viia) of the Act and show caused assessee-bank ‘as to why’ it should be disallowed; and pursuant to it, the assessee filed letter dated 13.12.2012 wherein it explained the claim for deduction u/s.36(1)(viia) of the Act to the tune of Rs.22,11,49,678/- being lower of (i) provision made in the books for bad & doubtful debts to the tune of Rs.22,11,49,678/- and (ii) Rs.83,52,84,747/- aggregate @7.5% of total income (Rs.20,31,06,147/-) & 10% of rural advances (Rs.3,21,78,600/-) and filed list of Rural Branches as Annexure-I. And the AO after enquiry has accepted the deduction claimed by assessee. So, the AO couldn’t have revisited the issue once again invoking jurisdiction for reopening.
Thus, we note from perusal of the reasons recorded itself that it is 8. not the case of the AO that the assessee failed to disclose fully and truly all material facts necessary for the assessment, in such an event, the reasons recorded by the AO to re-open the assessment framed u/s.143(3) of the Act after four years from the end of relevant assessment year without satisfying the proviso to sec.147 of the Act is held to be wholly without jurisdiction and therefore, on this score alone it needs to be quashed. Taking note that AO in this case has resorted to reopening on the ground that AO didn’t consider the Hon’ble Supreme Court decision in Catholic Syrian Bank (supra), we find similar case came up before Delhi bench of this Tribunal in the case of PCIT v. Moser Baer India Ltd. (ITA No.106/2019), wherein the AO re-opened the assessment on the ground that he (AO) didn’t consider the binding decision of the Hon’ble Supreme Court on an issue which was rendered eight years before the assessment was framed. The assessee challenged the re- opening resorted to by the AO which was quashed by the Tribunal (Delhi) and which decision of Tribunal was challenged by the Revenue before the Hon’ble Delhi High Court, wherein the Hon’ble Delhi High Court in the case of PCIT v. Moser Baer India Ltd. (ITA No.106/2019) was pleased to uphold the decision of the Tribunal by holding as under:
The Revenue is aggrieved by the order of the Tribunal rejecting its appeal. The assessee had questioned the reassessment proceedings under Sections 147/148 of the Income Tax Act, 1961 [hereafter "the 1961 Act"] on the ground that the reasons to re-open the assessment proceedings for AY 2002- 03 amounted to a second opinion or review of the previous view expressed.
The assessee was subjected to scrutiny proceedings under Section 143(3) of the Act and the original assessment was completed on 28.07.2004. Its claim under Section 37(1) for allowance of capital expenditure by way of royalty to the tune of `39,57,72,326/- in lieu of technical knowledge and depreciation of fixed assets was allowed. Later, reassessment proceedings were initiated on the premise that the scrutiny assessment originally completed, was in ignorance of a binding decision of Supreme Court in Southern Switchgears Ltd. v. CIT 1998 (232) ITR 359 (SC). The reassessment was completed and the amounts were added back. The assessee appealed, both on merits and on the issue of reopening. The CIT(A) concurred with the view of the Assessing Officer (AO). However, the Tribunal, following the decision of the Supreme Court in CIT v. Kelvinator of India Ltd. 320 (ITR) 561 (SC) and other decisions was of the view that since this scrutiny assessment had gone into the taxability of amounts in question, the AO could not have revisited the same issue on the pretext that a binding decision was overlooked. This Court is of the opinion that the impugned order is sound and reasonable and in accord with the judgment of the Supreme Court. Further, in somewhat circumstances, where reassessment proceedings were sought to be initiated on the ground of expenditure wrongly allowed in ignorance or overlooking Southern Switchgears (supra), this Court in Xerox Modicorp Ltd. v. DCIT 2013 (350) ITR 308 (Del) held that reassessment proceedings were unauthorised by law. No substantial question arises. The appeal is accordingly dismissed.
We note that the aforesaid decision was challenged by the Revenue before the Hon’ble Supreme Court which has been dismissed by the Apex Court reported in (2020) 270 Taxman 4 (SC). And in the present case, we find that the AO during the original assessment proceedings had called for the deduction claimed by the assessee u/s.36(1)(viia) of the Act and show caused ‘as to why’ it should be disallowed and pursuant to it the assessee filed letter dated 13.12.2012 wherein it explained the claim for deduction u/s.36(1)(viia) of the Act to the tune of Rs.23,11,49,679/- being lower of (i) provision made in the books for bad & doubtful debts to the tune of Rs.22,11,49,678/- (ii) Rs.83,52,84,747/- aggregate @7.5% of total income (Rs.20,31,06,147/-) & 10% of rural advances (Rs.3,21,78,600/-) and filed list of Rural Branches as Annexure-I. And the AO after enquiry has accepted the deduction claimed by assessee.
So, the AO couldn’t have revisited the issue once again.
In the light of the discussion, we find that there was no tangible material before the AO to have re-opened the assessment framed u/s.143(3) of the Act after four years from the end of relevant assessment year, therefore the reopening was bad; and that AO without satisfying the additional condition precedent given in first proviso to Sec.147 of the Act should not have reopened the completed assessment u/s 143(3) of the Act after four years from the end of the relevant assessment year; and therefore, in the facts and circumstance of the case, the attempt made by the AO to reopen the assessment was nothing but review of his own order which is not permissible under the law in force and therefore, it is quashed.
In the result, appeal filed by the assessee stands allowed
Order pronounced on the 09th day of October, 2024, in Chennai.