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Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
This appeal by the assessee against the order dated 19-03-2015 passed by the Principal Commissioner of Income Tax-1, Kolkata for the assessment year 2010-11 and Assessee raised the following grounds:-
1. That by his order uls263 of the I.T.Act dated 19.03.2015 the Ld. Principal CIT Kol-I erred in setting aside the assessment order dated 22.03.2013 passed u/s 143(3) of the LT.Act by the Ld. A.O. for Asstt. Year 2010-11 in respect of computation of Long Term Capital Loss on the disinvestment of Government Securities and directing him to decide this limited issue afresh as per law.
2. That the Ld. Principal CIT erred in holding that Government Securities are covered by the third provisio M/s. The Peerless General Finance & Investment Co. Ltd 1 below Sec.48 of the 1.T.Act and therefore on its disinvestment, the concept of indexed cost of acquisition ( as mentioned in the second provisio below Sec.48) could not be applied.
3. That the Ld. Principal CIT was not justified in ignoring the Assessee's submission contained in its letter dated 25.02.2015 filed before him that the third provisio below Sec.48 covered only Bonds and Debentures and Government Securities were neither Bond nor Debenture and consequently Cost Inflation Index was applicable in computing Long Term Capital Gain / Loss arising on its transfer.
4. That while passing his order u/s 263 of the I.T.Act, the Ld. Principal CIT failed to rebut the contention of the Assessee as contained in its letter dated 25.02.2015 that Government Securities issued by State / Central Government are totally different from Bonds and Debentures which are issued by a company.
5. That since Government Securities are not Bonds and Debentures within the meaning of the third provisio below Sec.48, the computation of Long Term Capital Loss on transfer of Government Securities by applying cost inflation index as made by the assessee and accepted by the Ld.A.O. was not erroneous and therefore the assessment order passed by the Ld. A.O. for Asstt. Year 2010-11 was neither erroneous nor prejudicial to the interests of the revenue and consequently the Ld. Principal CIT erred in assuming jurisdiction u/s 263 of the I.T.Act in this case.
6. That, on the facts and in the circumstances of the case, the order uls 263 of the I.T.Act dated 19.03.2015 passed by the Ld. Principal CIT Kol-I is liable to be cancelled.
That the appellant craves leave to alter, amend and substitute any of the above-mentioned grounds and add any further grounds before or at the time of hearing of the appeal.
The only ground amongst others above, is to be decided is as to whether the CIT erred in initiating the proceedings u/sec 263 of the Act in the facts and circumstances of the case. M/s. The Peerless General Finance & Investment Co. Ltd 2
The Assessee is a Non Banking Finance Company. The assessee declared its total income at Rs.354,35,08,182/- and filed its return of income on 27th September 2010 to that effect. Under scrutiny notices under section 143(2) and 142(1) of the act were issued. The assessing officer, thereby, determined the total income of the assessee at Rs.362,77,16,170/- and passed order under section 143 (3) of the Act.
The Prl.CIT Kol-I exercising jurisdiction u/s 263 of the Act issued show cause letter dated 17.02.15 as to why action u/s 263 of the Act should not be taken for revision of the computation of L.T.C.L as shown in its computation of total income as was accepted by the A.O. The Prl.CIT was of the opinion that the Assessee was not justified in applying Cost Inflation Indexed while computing the Long Term Capital Loss in view of the 3rd proviso below Sec.48 which provides that in computing Long Term Capital Gain arising from transfer of Bond or Debenture. According to him, the assessment order was erroneous and prejudicial to the interest of the Revenue as the A.O accepted the computation of L.T.C.L on the sale of Government Securities after applying Cost Inflation Index.
In reply to the show cause letter, the Assessee submitted a reply by its letter dated 25.02.15 before the Prl. CIT, Kol-l that Government Securities were neither Bond nor Debenture and that Cost Inflation Index is not applicable in respect of transfer of Bonds and Debentures as per the 3rd proviso to Sec.48 and the assessee was justified in applying Cost Inflation Index while computing L.T.C.L on the sale of its Govt. Securities. Considering the submissions of the Assesee, the Prl. CIT set aside the assessment order passed u/sec 143(3) and directed the AO to bring all details on record for verification and scrutiny and complete the M/s. The Peerless General Finance & Investment Co. Ltd 3 proceedings de novo by giving an opportunity to the Assessee vide his order dated 19.03.15 u/s 263 of the Act and the portion which reproduced hereunder:
I have gone through the issues on hand and the submissions of the assessee company. The main issue is that the AO. has failed to deal the specific facts of the case as per law and has not scrutinized/verified the details in respect of the issues' raised i.e. irregular indexing in computation of on L TCL resulted in excess carry forward of LTCL by Rs.28,43,33,411/- vide notice dt: 17.02.2015. The assessment u/s.143(3) of the I.T.Act,1961 passed by the AO. on 22.03.2013 is, therefore, appeared to be erroneous in so far as pre-judicial to the interest of revenue and hence the same is set-aside in respect of the above mentioned issues to the file of AO. with the direction that the detailed facts should be brought on record, scrutinized and verified. Thereafter, a decision should be arrived at as per provisions of I. T. Act after giving proper opportunity to the assessee company and considering the submissions/explanations filed by it.
Aggrieved by the order of the Prl.CIT Assessee before us by way of this appeal by raising aforementioned grounds. The Ld.AR reiterated the arguments advanced before the Prl. CIT and drew our attention to the clause (b) of Sec 2 of The Securities Contracts (Regulation) Act 1956 and argued that the Government Securities were issued by the Central Government or a State Government for the purpose of raising a Public loan in pursuance of the Public Debt Act 1944 as contemplated in Clause (2) of Sec. 2, thereby it means a security created and issued by respective Governments. In reply, Ld. DR submits that all the arguments as submitted by the Ld.AR before this Tribunal were advanced before the Prl.CIT and Prl.CIT rightly exercised his jurisdiction u/sec 263 of the Act and found the assessment order is erroneous as well as prejudicial to the interests of the Revenue and relied on the order of Prl.CIT. M/s. The Peerless General Finance & Investment Co. Ltd 4
7. Heard rival submissions and perused the material on record. According to the Assessee during the A.Y 2010-11 under consideration that it sold Government Securities and computed the capital gain on sale of such Government Securities after enhancing its cost of Acquisition by applying Cost Inflation Index as Long Term Capital Loss for short L.T.C.G and list of details of such sale and with computation of total income thereon was filed before the A.O. The A.O. accepted the computation of L.T.C.L on the sale of Government Securities as shown by the Assessee. We find from the computation of income placed at page no-13 of paper book which goes to show that an amount of Rs.89,10,830/- claimed to be short term capital loss which was brought forward from A.Y.2009-10, but, however, there was no reference or discussion whatsoever regarding verification or examination of details of sale of such Government securities and computation thereon. We, prime facie, satisfied that the AO did not examine the details of such claim, as observed by the Prl.CIT regarding indexation in computation of LTCL which resulted in excess carry forward of LTCL. With regard to the contention of the learned AR that the view of the Prl.CIT was wrong in treating the Government securities in terms of Bonds or debentures and that the government securities are different from Bonds and debentures and as the Bonds and debentures are issued by the companies and whereas the government securities issued by the respective governments. In this regard, the power of this Tribunal is very limited is as to decide whether the Prl.CIT erred in treating the bond and debentures on par with Government securities especially in an appeal assailing the order passed u/sec 263 of the Act. On the facts and circumstances of the present case, we are of the view that the AO ought to have made proper and adequate enquiries with regard to all the aspects set out in the show cause notice u/s.263 of the Act. The enquiry with regard to the claim of computation of LTCL by the Assessee during the previous M/s. The Peerless General Finance & Investment Co. Ltd 5 year was inadequate and in the light of the decision of the ITAT Kolkata Bench in the case of Subhlakshmi Vanijya (P) Ltd., (2015) 124 DTR (Kol)(Trib.) 249, the enquiry cannot be said to be adequate and proper. In our view there has been failure on the part of the AO to make proper and adequate enquiries on the issues set out by the CIT in the show cause notice u/s 263 of the Act. The circumstances pointed out by CIT in the show cause notice clearly warrant an enquiry by the AO before concluding the assessment on the various aspect set out in the show cause notice of the CIT u/s 263 of the Act. There has been a failure on the part of AO to make necessary and proper enquiries before concluding the assessment. We however find that the Hon’ble Calcutta High Court in the case of Maithan International 375 ITR 128 (Cal) has however taken a view that jurisdiction u/s 263 of the Act could be invoked when the AO fails to make an enquiry which he ought to have made in the given facts and circumstances of a case. We are therefore unable to accept the plea of the Ld. AR for the Assessee in this regard. As we have already mentioned, at this stage that we need not go into the merits of the issues raised by the CIT in the show cause notice u/s 263 of the Act because in the impugned order the AO has only been directed to examine the issues on merits after affording the assessee opportunity of being heard. In the given circumstances we are of the view that the assessee is at liberty to put forth of its claims on the merits of the issues before the AO in the assessment proceedings to be completed pursuant to the impugned order of CIT. In view of the aforesaid discussion, we feel appropriate to uphold the order of CIT u/s 263 of the Act and dismiss the appeal of the assessee.
Further, We are of the view that, exercise of Jurisdiction u/s 263 of the Act was fully justified. The decision of the Hon’ble High Court of Calcutta in M/s. The Peerless General Finance & Investment Co. Ltd 6 the case of CIT Vs. Maithen International 375 ITR 123 (Cal), dealt with this aspect of lack of enquiry with even more stringent conditions. The assessee in that case obtained loans aggregating to Rs.1.60 crore from six private limited companies ranging between Rs.7 lac to Rs.1.10 crore. These companies have filed their returns with nominal income. The AO mentioned in the assessment order that the Inspector was deputed to verify the fresh loans received during the years, who verified such loans and gave a positive report. Keeping such report on record, the AO accepted the genuineness of the transactions. The CIT invoked the powers u/s 263 in which it was observed that the report given by the Inspector was very elementary and simply mentioned that he had verified bank passbooks, profit & loss account and balance sheets of these companies. In none of the reports he had commented on the issue of credit worthiness of the parties. The CIT opined that the AO was required to make proper investigation to determine whether the loan was really made by the third party or it had come out of the resources of the assessee himself. When the matter came up before the Tribunal, the order u/s 263 was set aside by observing that the AO did conduct enquiry and: “if there is an enquiry, even inadequate, that would not by itself give occasion to the ld. CIT to pass order u/s 263 of the Act.” Setting aside the order passed by the Tribunal, the Hon’ble jurisdictional High Court has laid down that : “CIT had reasons to hold that credit worthiness of the alleged lenders was not enquired into.” It further went on to hold that a mere examination of the bank passbook, profit & loss account and balance sheet is not enough. When the requisite enquiry was not made, the Hon’ble High Court held that the order was to be considered as erroneous and prejudicial to the interests of the Revenue. It set aside the view of the Tribunal on inadequate enquiry by holding that: “If the relevant enquiry was not made, it may in appropriate cases amount to no enquiry and may also be a case of non- M/s. The Peerless General Finance & Investment Co. Ltd 7 application of mind.” It further observed that the question of inadequate enquiry should be understood in its proper perspective and: “if it can be shown that the inadequate enquiry led the AO or may have led into assumption of incorrect facts, that could make the order erroneous and prejudicial to the interests of the revenue.” Setting a bad trend is also prejudicial to the Revenue.
In view of the same, we find no irregularity in the impugned order passed by the Prl.CIT and it does not require any interference from this Tribunal, accordingly, the appeal filed by the Assessee fails and therefore, grounds raised thereon in support of the appeal are dismissed.
In the result, the appeal filed by the Assessee is dismissed
Order Pronounced in the Open Court on 26 -08-2016.