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Income Tax Appellate Tribunal, DELHI BENCH ‘G’ NEW DELHI
ORDER Per C.M. Garg, JM
This appeal by the assessee has been filed against the order of the Commissioner of the Income Tax (Exemptions)–CIT-E, New Delhi order dated 27/03/2015 passed under section 263 of the Income Tax Act 1961, (for short the Act).
The sole ground raised by the assessee-appellant reads as under: 1. “That the learned CIT(Exemptions) has erred in invoking the jurisdiction under section 263 of the Act in the instant case.” 2. “That the learned CIT(Exemptions) has erred in holding that the assessment order passed U/s 143(3) of the Act on 29.10.2013 by the Assessing Officer is erroneous in as much as it is prejudicial to the interest of the Revenue.” “b) That the learned CIT has erred in holding that the Assessing Officer has not addressed the issues raised by her in her notice U/s 263 of the Act and that the assessee’s claim of exemption of income under various sections and provisions of law has been accepted by the Assessing Officer without application of mind and without bringing on record necessary details and making necessary inquiries. That the learned CIT has erred in drawing the aforesaid conclusion without appreciating the fact that the Assessing Officer has made all due and necessary inquiries on all the issues raised by her in the notice U/s 263 and has passed the order only after being satisfied with the explanations and evidences filed by the assessee and after examining and books of accounts, bills, vouchers etc. during the course of assessment proceedings.” “c) That the learned CIT (Exemp.) has erred in drawing adverse inference against the assessee only on the basis of suspicion without pointing out any specific discrepancy in various details and documentary evidences filed by the assessee before the Assessing Officer in response to questionnaire issued by him and duly examined by him during the course of assessment proceedings.” “d) That the learned CIT (Exem.) has erred in passing the impugned order U/s 263 of the Act without having any valid basis/ material on record to hold that the order of the Assessing Officer was erroneous and prejudicial to the interests of revenue.” “e. That the learned CIT(Exmp.) has erred in invoking the jurisdiction U/s 263 of the Act only on the basis of her whims and fancies and has also erred in setting aside the order of the A.O. for making fishing and roving inquiries.” “3 That the appellant craves the right to amend, append, delete any or all grounds of appeal”
We have heard arguments of both the sides and carefully perused the relevant materials placed before us on record. The Ld Counsel of the assessee submitted that original assessment for relevant AY 2001-12 was completed on 29.10.2013 and subsequently the CIT(E) issued show cause notice U/s 263 of the Act on 19.01.2015 alleging four issues showing his intention to review the impugned assessment order U/s 263 of the Act copy of the said notice is available at page 134 of the assessee’s paper book. The Ld Counsel pointed out that regarding first issue of corpus donations the assessee submitted during the assessment proceeding vide reply dated 08.08.2015 all the details regarding the same replying to the question No. 12 posed by the AO which is available at page 47 of the assessee paper book and assessee also filed confirmation regarding the said donations about all eleven donors were filed alongwith reply dated 8.8.2013 to the questionnaire issued to the assessee which are also available at pages 75 to 105 of the assesee’s paper book. The Ld Counsel also submitted that the AO for A.Y 2011-12 has allowed exemption u/s 11(1)(d) of the Act to the assessee which is vivid from the copy of the said assessment order dated 29.10.2013 available at page 41 & 42 of the assessee’s Paper book.
4 The Ld counsel vehemently pointed out that the CIT(E) at page 4 in para 3 and at page 6 para 5 of the impugned order the ld. CIT(A) has alleged that there was inadequate inquiry in this regard and without drawing any conclusive findings held that the order is erroneous and prejudicial to the interest of revenue and directed the AO to examine the issues afresh which is not a proper and legal approach as per decisions of Hon’ble Delhi High Court in the case of DIT Vs Jyoti Foundations reported as 357 ITR 388 (Delhi) and as per decision of Hon’ble Supreme Court in the case CIT Vs Malabar Industries 243 ITR 83(SC).
5 Regarding second issue of room rent receipts the Ld counsel pointed out that the AO raised query by posing question no. 26 of the questionnaire to the assessee and the assessee replied the same in Para 4 in the reply dated 08.08.2013. The Ld Counsel pointed out that in Para 3.1 of the impugned order the CIT(E) wrongly alleged the same without any conclusive finding. The Ld Counsel pointed out that the room rent receipts were regularly allowed to the assessee for previous A.Ys as the same were incidental to the main object of the assessee i.e. dispensing of education and the AO allowed the same by following rule of consistency which cannot be alleged as erroneous and prejudicial to the interest of the revenue.
6 On the third issue of investment in land the Ld Counsel pointed out that reply to the question no. 8 and 29 of the questionnaire the assessee filed its stand in reply at serial no. 2 (available at pages 59 to 60 of the assessee paper book) and the assessee also submitted relevant document i.e. copy of sale deed at page no 70 to 74 of the assessee paper book. The Ld Counsel vehemently pointed out that the CIT(E) at page no 4 Para 3.2 of the impugned order recorded factually incorrect observations and finding which vitiate the order. The Ld Counsel pointed out that the assessee submitted entire details regarding investment in land and when the registered sale deed in favour of the assessee has been submitted during the original assessment proceedings supporting the transaction in favour of the appellant society then nothing else is required and the registration of sale deed and its copy is sufficient to establish the transaction and proper use of funds of the society towards objects of the assessee.
7 The Ld Counsel lastly pointed out that regarding addition to capital assets the AO raised question 8 and 27 which were replied by the assessee vide reply dated 08.08.2013 along with copies of the ledger and other relevant documents which are available at 187 to 705. the Ld counsel pointed out that except suspicion no other sound material or allegations could be brought out by the CIT(E) for invoking provisions of section 263 of the Act and there is no allegation against the AO that he accepted the claims of the assessee without any inquiry and on wrong application of fact and law.
8 The Ld counsel also placed his reliance on the judgment of Hon’ble Jurisdictional High Court of Delhi in the case of CIT Vs Vikas Polimers 341 ITR 537 (Delhi) and decision in the case of CIT VS Anil Kumar Sharma 335 ITR 83 (Delhi) and submitted that while AO has raised quires from the assessee and assessee submitted its reply along with relevant documents then the AO is allowing the claim of the assessee in this situation review of said conclusion of the Act under section 263 of the Act is not permissible as the same would amount to reviewing of an order without any legal ground as required by the provision of section 263 of the Act.
9 Replying to the above the Ld CIT DR submitted that section 263 of the Act has two elements viz. the order should be erroneous and secondly prejudicial to the interest of the revenue. The Ld CIT DR pointed out that the impugned assessment order was framed without adequate enquiry hence the CIT(E) was quite correct and justified in invoking the provisions of section 263 of the Act. The Ld CIT DR pointed out that there was a serious doubt about allowability and acceptability of all four issues raised by the CIT(E) in the notice under section 263 of the Act. The Ld CIT DR also pointed out that the AO spend six months in the assessment proceedings and he issued show cause notices and questionnaire mechanically without applying his mind and reply of the assessee was accepted without any justified reasoning and adjudication therefore the order has to be held as erroneous and prejudicial to the interest of the revenue.
10 The Ld CIT DR also submitted his contentions regarding all four issues raised by the CIT(E) and submitted that on the issue of Corpus Donations proper enquiry was not made and CIT(E) has in Para 3 of the impugned order clearly held that merely because questionnaire was issued and assessee filed its reply to the same does not show the conduct of required enquiry and the enquiry cannot be made by issuing questionnaire and if there is no deliberations or conclusion by the AO on the issue showing that he applied his mind to the CIT(E) with valid jurisdiction to invoke provisions of section 263 of the Act.
11 The Ld CIT DR also pointed out that regarding room rent the assessee submitted only break up of the receipts and no further enquiry was carried by the AO therefore benefit of the ratio of the decisions of Hon’ble Delhi High Court in the case of CIT Vs. Anil Kumar Sharma [supra] is not available and applicable in favour of the assessee. The Ld CIT DR vehemently pointed out that the CIT(E) carefully gone through the records and then after satisfying himself about the erroneousness and prejudice caused to the revenue legally invoked provisions of section 263 of the Act by issuing notice dated 19.01.2015. the LD CIT DR pointed out that it is case of no enquiry therefore in view of the prepositions laid down by Hon’ble Calcutta High Court in the case of CIT Vs Maithan International reported as 375 ITR 123 (Calcutta) the order of CIT(E) is sustainable. The Ld CIT DR lastly pointed out that no basic and necessary enquires have been conducted by the AO after receiving the reply of the assessee and it is a clear case of no enquiry therefore order of the CIT(E) should be held as sustainable.
12 The Ld AR also placed rejoinder to the above noted submissions of the Ld CIT DR, and pointed out that it is not a case of no enquiry or lack of enquiry as the AO made detailed enquiry by way of issuing questionnaire on all the relevant points including four issues raised by the CIT(E) in the impugned notice U/s 263 of the Act. The Ld Counsel also pointed that after considering the reply of the assessee to the questionnaire filed on 8.8.2013 the AO also enquired about the relevant facts and evidence and after considering the same passed assessment order which cannot be alleged as erroneous of prejudicial to the interest of the revenue. The Ld Counsel also contended that merely because the AO did not adjudicate the issues in so many words as expected by the CIT(E) the order cannot be labeled as erroneous and prejudicial to the interest of the revenue, if final conclusion of the AO is sustainable and the same is as per provisions of the Act.
13 On careful considerations of the above submissions at the out set we respectfully take cognizance of the prepositions rendered by Hon’ble Calcutta High Court in the case of CIT Vs Maithan International (Supra) which reads as under:
Assessing Officer occupying the position of an gator and adjudicator can discharge his function by perfunctory or inadequate investigation. Such a course is bound to result in erroneous and prejudicial orders. Where the relevant enquiry was not undertaken, as in se, the order is erroneous and prejudicial too and, therefore, revisable. Investigation should always be faithful and fruitful. Unless all fruitful areas of enquiry are pursued the enquiry cannot be said to have been faithfully conducted. In a different context the apex court observed "contra veri- lex nunquam aliquid permittit: implies a duty on the court to accept cord its approval only to a report which is the result of faithful and investigation"
See Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) d in [2010] 6 SCC 1 paragraph 200 at page 80)”
14 On careful considerations of rival submissions we are satisfied that the AO raised details queries on all four issues as agitated by the CIT(E) in the impugned notice issued under section 263 of the Act. From the assessee’s paper book page no 59 and 60 it is clear that the assessee filed its reply along with all documents relevant to the issues, therefore we are unable to agree with the contentions of LD CIT(E) that it is a case of no enquiry on the issues reviewed by the CIT(E). Further more, if the impugned order is logically tested on the point of view of inadequate enquiry then we note that the AO considered confirmation of the donors which were filed by the assessee with its reply to the questioners and the same cannot be held as insufficient when the confirmations not only contain names, pan numbers, address of the donors but amount of donations supported by source of donations then it cannot be held that there was inadequate enquiry on this issue. It is pertinent to mention that enquiry is a wider term and scope of enquiry is always fixed by the person who is conducting the enquiry and if the ambit of enquiry which has been fixed by the officer concern is reasonably proper and result therefrom is sustainable and not contrary to the facts and law, then the allegations of inadequate enquiry cannot be placed merely because as per the reviewing authority the enquiry should have been done on other angles also.
15 So far as the issue of room rent receipts are concerned admittedly and undisputedly the appellant is engaged in the charitable object of dispensing education and room rent receipt from the students using hostel facilities have direct nexus with the main object of the society, therefore receipts from room rent which were regularly allowed to the assessee in the previous assessment year cannot held as business income of the assessee without bringing out any sound allegation or new facts on record. In this situation, it is apparent that the AO made enquiry in this regard and on the basis of details submitted by the assessee the AO rightly followed rule of consistency and allowed the same. Conclusion of the AO in this regard cannot be held unsustainable and against the provisions of the Act.
16 On careful consideration of third issue of investment in land the assessee replying to the questioner submitted the copy of the registered sale deed which was executed in favour of the society and all details of payments contained therein were found in order then it was not necessary to conduct any further enquiry regarding prevalent market rate and the collector rate of the area or surrounding area so as to ascertain if there has been any under statement or overstatement in the land purchase. It is pertinent to note that from relevant paragraph 3.2 of the impugned order the CIT(E) has decided this issue by taking a hyper approach and on the basis of surmises and conjecture without bringing out any conclusion of over statement or under statement of consideration. Therefore the conclusion of the AO cannot be held as unsustainable or erroneous and prejudicial to the interest of the revenue. On the issue of addition to capital assets the CIT(E) has merely proceeded on the basis of suspicion and no allegation about wrong or unsustainable conclusion in the assessment order has been brought out by the CIT(E).
17 In view of above discussion we are of the considered opinion that the AO conducted required and adequate enquiry regarding all four points and after considering the reply of the assessee and all relevant material, evidence and explanations of the assessee and by following the rule of consistency as well as provisions of the Act rightly passed impugned assessment order which cannot be held as erroneous or prejudicial to the interest of the revenue on any issue as alleged in the notice u/s 263 of the Act. It is pertinent to note that as per the ratio of the decision of Hon’ble Calcutta High Court in the case of CIT Vs Maithan International (Supra) it was held that unless all fruitful areas of enquire are pursed the enquire cannot be said to have been faithfully conducted and in this situation provisions of section 263 of the Act can validly invoked by the CIT(E). But on careful consideration of the fact of the present case we respectfully observe that the benefit of the ratio of this dicta is not available for the revenue in the present case as there was not only a questionnaire issued to the assessee but the AO after considering the reply and enclosed documentary evidence and explanations of Act. At the same time, we observed that the present case of assessee is squarely covered in its favour by the various decisions of Hon’ble Jurisdictional High Court including decision in the case of CIT Vs Joyti Foundations (Supra) wherein it was held that only in the case of no enquiry provisions of section 263 of the Act can validly invoked otherwise in the case of proper enquiry the enquiry cannot be alleged as inadequate or insufficient and on this basis provisions of section 263 of the Act cannot be invoked and the ld. CIT(A) should conduct enquire himself to record finding that assessment order was erroneous and prejudicial to the interest of the Revenue specially when the conclusion of the AO is not contrary to the provisions of the Act and the same is according to the law and sustainable. Their Lordship held that the ld. CIT(A) should not have set aside the order and directed the AO to conduct the enquiry without any conclusion. From the vigilant reading of the impugned order we observe that the ld. CIT(E) without any conclusive findings and observation only on the basis of suspicion and doubts held that the assessment order is erroneous and prejudicial to the interest of the Revenue and directed the AO to examine the issue afresh setting aside the order which is not permissible as per proposition laid down by the Hon'ble High Court in the case of Jyoti Foundations [supra].
18 On the basis of foregoing discussions we have no hesitation to hold that the CIT(E) proceeded to issue notice U/s 263 of the Act without considering the assessment record and in the impugned order he wrongly held the assessment order as erroneous and prejudicial to the interest of the revenue without any basis and therefore in our opinion the CIT(E) has no valid jurisdiction to invoke revisional power of the provisions of 263 of the Act and the notice under the said provision dated 19.01.2015 and impugned order passed in pursuant thereto cannot be held as sustainable and deserve to be quashed and we quash the same. Finally, legal ground No. 1 and 2 of the assessee are allowed and impugned notice dated 19.01.2015 and order under section 263 of the Act are quashed.
19 In the result appeal of the appellant society is allowed.
Order is pronounced in the open court on 02/03/2016.