M/S J.C.SHARMA & SONS,BHOPAL vs. PR CIT -2, BHOPAL

Per B.M. Biyani, A.M.:

Feeling aggrieved by revision-order dated 29.08.2019 passed by learned Pr. Commissioner of Income-Tax-2, Bhopal [“Ld. PCIT)”] u/s 263 of Income-tax Act, 1961 [“the Act”], which in turn arises out of assessment-order dated 25.04.2017 passed by learned DCIT-5(1), Bhopal [“Ld. AO”] u/s 143(3) for Assessment-Year [“AY”] 2015-16, the assessee has filed this appeal on following grounds: “1. The Ld. CIT was not justified in passing order u/s 263, which is bad in law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 2. The Ld. CIT was not justified in initiating proceedings u/s 263, as the order of the Ld. AO was neither erroneous not prejudicial to the interest of the revenue, and thus the revision order deserves to be quashed. 3. The Ld. CIT failed to notice that the issues on which jurisdictional u/s 263 was exercised, were already inquired during the assessment u/s 143(3), and thus the order u/s 143(3) cannot be said to be erroneous. 4. The Ld. CIT was not justified in not giving the revenue impact of the alleged transactions, therefore, what prejudice was caused to the revenue is unknown.” 2. Heard the learned Representatives of both sides and case-records perused.

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 condonation of delay on the guidelines evolved by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others (supra). We confronted Ld. DR who was fair enough in not placing any objection. In this view of matter, we are inclined to condone the delay and proceed for hearing of appeal.

“Please refer to the order u/s 143(3) of the IT Act, 1961 dated 25.04.2017 passed by the DCIT-5(1), Bhopal for A.Y. 2015-16, whereby total income was assessed at Rs. 44,19,050/- 2. From the case records of assessee for A.Y.2015-16, it was noticed that the case of the assessee was selected for the following reasons under the Limited scrutiny:- (i) Real estate business with high closing stock (Verify whether assessee has adopted percentage completion method) (ii) Higher turnover reported in Service Tax Return compared to ITR and assessee deposited large amount of cash in saving bank account. (iii) Sale of property reported in form 26QB. (iv) Large increase in Sundry Creditors with respect to turnover as compared to preceding year. (v) Large other expenses claimed in the Profit & Loss a/c. (vi) Mis-match in sales turnover reported in Audit Report and ITR (vii) Large increase in Sundry creditors and reduction in business income as compared to preceding year.”

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 On perusal of case records and assessment order dated 25.04.2017, it is observed that the assessing officer has failed to examine and verify the core issues for which the case was selected in limited scrutiny. 3. Assessment in the said case u/s 143(3) dated 25.04.2017 was finalized without considering the above mentioned facts. This omission on part of the AO, renders the order erroneous as well as prejudicial to the interests of revenue. Therefore, I propose to invoke powers vested u/s 263 of the Income-tax Act, 1961 in respect of the order referred to above.” 5. By the aforesaid show-cause notice, the assessee was asked to explain as to why the assessment-order may not be revised. In response thereto, the assessee made a detailed submission to Ld. PCIT. However, Ld. PCIT was not satisfied with the submission of assessee. Ld. PCIT further observed that since the section 263 has been amended and Explanation 2, as reproduced below, had been introduced therein, the assessment-order is deemed to be erroneous and prejudicial to the interest of revenue if the same had been passed without inquiries or verification which should have been made:

“Explanation 2 – “For the purpose of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interest of revenue, if in the opinion of the Principal Commissioner or Commissioner - (a) The order is passed without making inquiries or verification which should have been made; (b) The order is passed allowing any relief without inquiring into the claim; (c) …. (d) …” Finally, Ld. PCIT passed revision-order whereby the assessment-order was set aside to the file of Ld. AO with a direction to reframe assessment.

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 8. Thereafter, Ld. AR straight away carried us to Para No. 1 to 4 / Page No. 1 to 5 of the assessment-order to demonstrate that a bare reading of assessment-order itself transpires very aptly that the Ld. AO had duly confronted the assessee on all points of the limited scrutiny; that the assessee had filed point-wise detailed reply; and that the Ld. AO completed assessment after considering the reply of assessee. We reproduce below the aforesaid paras / pages of assessment-order:

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 9. Ld. AR submitted that when all points of limited scrutiny have been duly examined and verified by Ld. AO which is quite evident from assessment-order itself, Ld. PCIT is not justified in concluding that the AO has failed to examine / verify the points of limited scrutiny. According to Ld. AR, the Ld. PCIT is trying to treat the assessment-order as erroneous-cum- prejudicial on the set of his own thinking, or, just to substitute his own thinking in place of Ld. AO’s conclusion. Ld. AR submitted that such an approach is not permissible u/s 263, therefore the order passed by Ld. PCIT is not in accordance with the law of section 263 and must be quashed.

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 to unending litigation and there would not be any point of finality of assessment-proceeding done by Ld. AO.

“5. The learned AR before us filed a paper book running from pages 1 to 157 and contended that all the necessary details about the advances received from the parties, sales shown in the financial statement and details of the service tax returns were filed during the assessment proceedings. The learned AR further contended that the assessment was framed by the AO after considering the necessary details and verification and application of mind. The learned AR in support of his contention drew our attention on pages 151 to 153 of the paper book where the copy of the notice under section 142(1) of the Act was placed. Likewise, the learned AR also drew our attention on pages 154 to 157 of the paper book where the reply of the assessee in response to the notice issued under section 142(1) of the Act was placed. Thus, the learned AR contended that there cannot be said that the assessment order is erroneous and causing prejudice to the interest of Revenue in the given facts and circumstances on account non-verification. 6. On the contrary, the learned DR before us contended that reconciliation of the amount shown in the service tax return and financial statement was not available before the AO during the assessment proceedings. Accordingly the learned DR vehemently supported the order of the learned PCIT. 7. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the present case relates whether the assessment order has been passed by AO without making inquiries or verification with respect to the difference in the figures as discussed above and hence the assessment is erroneous insofar prejudicial to the interest of the Revenue. Thus, requiring revision by Pr. CIT u/s 263 of the Act. 7.1 An inquiry made by the Assessing Officer, considered inadequate by the Commissioner of Income Tax, cannot make the order of the Assessing Officer erroneous. In our view, the order can be erroneous if the Assessing Officer fails to apply the law rightly on the facts of the case. As far as adequacy of inquiry is considered, there is no law which provides the extent of inquiries to be made by the Assessing Officer. It is Assessing Officer’s prerogative to make inquiry to the Page 11 of 16

M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 extent he feels proper. The Commissioner of Income Tax by invoking revisionary powers under section 263 of the Act cannot impose his own understanding of the extent of inquiry. There were a number of judgments by various Hon’ble High Courts in this regard. 7.2 Delhi High Court in the case of CIT Vs. Sunbeam Auto 332 ITR 167 (Del.), made a distinction between lack of inquiry and inadequate inquiry. The Hon’ble court held that where the AO has made inquiry prior to the completion of assessment, the same cannot be set aside u/s 263 of the Act on the ground of inadequate inquiry. The relevant observation of Hon’ble Delhi High Court reads as under: “12. ….. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of “lack of inquiry”, that such a course of action would be open. ——— From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. 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 more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, 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. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. There must be some prima facie material on record to show that 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.

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 15. Thus, even the Commissioner conceded the position that the Assessing Officer made the inquiries, elicited replies and thereafter passed the assessment order. The grievance of the Commissioner was that the Assessing Officer should have made further inquires rather than accepting the explanation. Therefore, it cannot be said that it is a case of ‘lack of inquiry’.” 7.3 The Hon’ble Bombay High Court in case of Gabriel India Ltd. [1993] 203 ITR 108 (Bom), discussed the law on this aspect in length in the following manner: “The 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. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi judicial controversies as it must in other spheres of human activity. 7.4 The Mumbai ITAT in the case of Sh. Narayan Tatu Rane Vs. ITO, I.T.A. No. 2690/2691/Mum/2016, dt. 06.05.2016 examined the scope of enquiry under Explanation 2(a) to section 263 in the following words:- “20. Further clause (a) of Explanation states that an order shall be deemed to be erroneous, if it has been passed without making enquiries or verification, which should have been made. In our considered view, this provision shall apply, if the order has been passed without making enquiries or verification which a reasonable and prudent officer shall have carried out in such cases, which means that the opinion formed by Ld Pr. CIT cannot be taken as final one, without scrutinising the nature of enquiry or verification carried out by the AO vis-à-vis its reasonableness in the facts and circumstances of the case. Hence, in our considered view, what is relevant for clause (a) of Explanation 2 to sec. 263 is whether the AO has passed the order after carrying our enquiries or verification, which a reasonable and prudent officer would have carried out or not. It does not authorise or give unfettered powers to the Ld Pr. CIT to revise each and every order, if in his opinion, the same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant.” 7.5 The Hon’ble Supreme Court in recent case of Principal Commissioner of Income-tax 2 v. Shree Gayatri Associates*[2019] 106 taxmann.com 31 (SC), held that where Pr. CIT passed a revised order after making addition to assessee's income under section 69A in respect of on-money receipts, however, said order Page 13 of 16

M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 was set aside by Tribunal holding that AO had made detailed enquiries in respect of such on-money receipts and said view was also confirmed by High Court, SLP filed against decision of High Court was liable to be dismissed. The facts of this case were that pursuant to search proceedings, assessee filed its return declaring certain unaccounted income. The Assessing Officer completed assessment by making addition of said amount to assessee's income. The Principal Commissioner passed a revised order under section 263 on ground that Assessing Officer had failed to carry out proper inquiries with respect to assessee's on money receipt. In appeal, the Tribunal took a view that Assessing Officer had carried out detailed inquiries which included assessee's on-money transactions and Tribunal, thus, set aside the revised order passed by Commissioner. The Hon’ble High Court upheld Tribunal's order. The Hon’ble Supreme Court while dismissing the SLP filed by the Department held as under:- “We have heard learned counsel for the Revenue and perused the documents on record. In particular, the Tribunal has in the impugned judgment referred to the detailed correspondence between Assessing Officer and the assessee during the course of assessment proceedings to come to a conclusion that the Assessing Officer had carried out detailed inquiries which includes assessee's on-money transactions. It was on account of these findings that the Tribunal was prompted to reverse the order of revision. No question of law arises. Tax Appeal is dismissed”. 7.6 The Supreme Court in the another recent case of Principal Commissioner of Income-tax-2, Meerut v. Canara Bank Securities Ltd [2020] 114 taxmann.com 545 (SC), dismissed the Revenue’s SLP holding that 263 proceedings are invalid when AO had made enquiries and taken a plausible view in law, with the following observations: “Having heard learned counsel for the parties and having perused the documents on record, we see no reason to interfere with the view of the Tribunal. The question whether the income should be taxed as business income or as arising from the other source was a debatable issue. The Assessing Officer has taken a plausible view. More importantly, if the Commissioner was of the opinion that on the available facts from record it could be conclusively held that income arose from other sources, he could and ought to have so held in the order of revision. There was simply no necessity to remand the proceedings to the Assessing Officer when no further inquiries were called for or directed” 7.7 From an analysis of the above judicial precedents, the principle which emerges is that 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 Assessing Officer adopts one of the course permissible in law and it has resulted in loss of revenue; or where two views are possible and the Assessing Officer has taken one view with which the Commissioner of Income- tax does not agree, it cannot be treated as an erroneous order causing prejudice to the interests of the Revenue unless the view taken by the Assessing Officer is unsustainable in law, or the AO has completely omitted to make any enquiry altogether or the order demonstrates non-application of mind.

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 7.8 Now in the facts before us, in the case of the assessee the AO during the course of assessment proceedings, made enquiries on this issue and after consideration of written submissions filed by the assessee and documents / evidence placed on record, framed the assessment under section 143(3) of the Act without making the addition of the amount as note above. This fact can be verified from the notice under section 142(1) of the Act by the AO and submission in reply of the assessee against such notice.

XXX 7.9 From the above it is revealed that it is not the case that the AO has not made any enquiry. Indeed the Pr. CIT initiated proceedings under section 263 of the Act on the ground that the AO has not made enquiries or verification which should have been made in respect of cash deposited during the demonization period. It is not the case of the Pr. CIT that the Ld. AO did not apply his mind to the issue on hand or he had omitted to make enquiries altogether. In the instant set of facts, the AO had made enquiries and after consideration of materials placed on record accepted the genuineness of the claim of the assessee.

7.10 At this juncture, it is also important to note that the learned PCIT in his order passed under section 263 of the Act has made reference to the explanation 2 of section 263 of the Act. It was attempted by the learned PCIT to hold that there were certain necessary enquiries which should have been made by the AO during the assessment proceedings but not conducted by him. Therefore, on this reasoning the order of the AO is also erroneous insofar prejudicial to the interest of revenue. In this regard, we make our observation that the learned PCIT has also not specified the nature and the manner in which the enquiries which should have been conducted by the AO in the assessment proceedings. Thus, in the absence of any specific finding of the learned PCIT with respect to the enquiries which should have been made, we are not convinced by his order passed under section 263 of the Act.”

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M/s. J.C. Sharma & Sons ITA No.299/Ind/2020 Assessment year 2015-16 thus, quash the revision-order and restore the original assessment-order passed by Ld. AO.

Order pronounced as per Rule 34 of I.T.A.T. Rules 1963 on 14.11. 2022.

Sd/- Sd/-

(MADHUMITA ROY) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Indore �दनांक /Dated : 14.11.2022 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order

UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Benches, Indore 1. Date of taking dictation 1.11.22 2. Date of typing & draft order placed before the Dictating Member 1.11.22 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the fair order is placed before the Dictating Member for pronouncement 5. Date on which the file goes to the Bench Clerk 6. Date on which the file goes to the Head Clerk 7. Date on which the file goes to the Assistant Registrar for signature on the order 8. Date of dispatch of the Order

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