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Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA
Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the assessee is against the order of Commissioner of Income Tax, Kolkata-I u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide M.No. CIT,Kol-I,Kol/263/2013-14/10847-49 dated 28.03.2013. Assessment was framed by JCIT(OSD). CIT-1, Kolkata u/s 143(3) of the Act vide his order dated 28.12.2011 for assessment year 2009-10. The grounds raised by the assessee per its appeal are as under:- “1) That the learned Commissioner of Income Tax, Kolkata - I, Kolkata erred in arbitrarily initiating the impugned proceedings under section 263 of the Income Tax Act, 1961, in the instant case of the Appellant Company herein, in respect of the
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 2 assessment year 2009-10, through the Notices dated 9th January, 2014 and 3rd March, 2014. 2) That, on the facts and in the circumstances of the case, the Ld. Commissioner of Income-tax erred in alleging that the assessment order dated 28th December, 2011 passed under section 143(3) was erroneous in so far as it was prejudicial to the interest of the Revenue, and on the basis of such misconceived allegation he further erred in assuming jurisdiction under section 263 of the Act, and passing the impugned order dated 26th March, 2014 under the said Section, which is wholly perverse and invalid in limine. 3) That without prejudice to the above, the learned Commissioner of Income Tax failed to appreciate that the conditions precedent for initiation of the impugned proceedings under section 263 of the said Act, were neither present nor satisfied, in the instant case of the Appellant Company herein in respect of the assessment year 2009-10. 4) That, without prejudice to the above, the learned Commissioner of Income Tax, on misconceived notions and without any material fact and/or evidence whatsoever, misdirected himself in alleging that no proper and scrutiny was been conducted by the Assessing Officer in the following matters resulted in assessment order to be erroneous and prejudicial to the interest of revenue within the meaning of sec. 263 of the Act. (i) Tax deducted at source of Rs. 74,47,992/- claimed by the Appellant Assessee Company. (ii) Income earned from investments made in companies under the same management namely M/s Nagel Special Machines Pvt. Ltd. and Dango & Dienenthal (India) Pvt. Ltd., (iii) Advances of RS.7.62 crore appearing in the Balance Sheet (iv) Expenses claimed under various heads debited in Profit & Loss account and Sales of Rs.4.33 crore, Sales (Computer & accessories) of Rs.35-!6 crore and sales (support pack) of Rs. 24.48 lacs and commissioning installation and service charges RS.1.36 crore. (v) Commission received and Commission Paid. 5) That the learned Commissioner of Income Tax erred in arbitrarily alleging and/or holding that the Assessing Officer failed to properly scrutinize and enquire into above aspects and on the basis of such allegation he further erred in setting aside the whole of the assessment order with directions to pass fresh order after examining the case de-novo. 6) That, without prejudice to the above, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax erred in setting aside the order dated 28th December, 2011 passed by the Assessing Officer under section 143(3) of the Act by assuming jurisdiction under section 263 of the Act relying on several decisions of Courts which are either not applicable or distinguishable to the facts and law relating
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 3 to this case and thereupon further erred in directing the Assessing Officer to pass fresh order after conducting enquiry as directed in the impugned order passed u/s 263 of the Act. 7) That on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax erred in setting aside the order dated 28th December, 2011 passed by the Assessing Officer under section 143(3) of the Act after making scrutiny and enquiry on all matters and issues raised in the show cause notices issued by him. 8) That the appellant craves leave to take additional grounds, and/or to amend or withdraw any of the foregoing grounds before, or at the time of hearing of this appeal.”
Smt. Nilima Joshi, Ld. Authorized Representative appeared on behalf of assessee and Shri Sachchidananda Srivastava, Ld. Departmental Representative appeared on behalf of Revenue.
Grounds No. 1 to 7 are inter-related and therefore being taken up together for the passing of consolidated order for sake of convenience. The common issue raised in all the grounds of appeal is that the ld. CIT(A) erred in holding the order of the AO and prejudicial to the interest of revenue u/s 263 of the Act.
The facts in brief are that assessee is a Private Limited Company and filed its return of income declaring total income of Rs.5,58,03,750/- which is comprising of house property income, business and professional income and income from other sources. Thereafter case was selected for scrutiny and notice u/s. 143(2) r.w.s.142(1) of the Act was issued to the assessee. The assessment was framed at Rs.5,61,26,967/- after making certain additions / disallowances. Thereafter Ld. CIT u/s. 263 of the Act opined that order passed by Assessing Officer is erroneous in so far prejudicial to the interest of revenue on account of following:-
As per the column no. 21(B)(b) of Tax Audit Report (For short TAR) the liability for leave salary amounting to Rs. 21,90,943/- was incurred during the year but the same was not paid. But the AO has allowed the same as deduction except an amount of Rs. 1,69,505/-. So the excess deduction of Rs. 20,21,438/- (Rs. 21,90,943.00 - Rs. 1,69,505.00) was allowed as deduction.
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 4 2. The assessee showed the commission income of Rs. 17.73 crores after adjusting the amount Rs. 1.36 crores (Gross commission 19.10 crores less commission paid 1.36 crores. Besides the above the commission was also paid to the two directors and General Managers for Rs. 1,20,82,678/- and 83,32,880/-. The commission paid to the directors was debited in the profit and loss account. In the absence of the details of the commission of Rs. 1.36 crores, the ld. CIT observed that the AO did not verify whether commission paid to the general managers was debited in the profit & loss account or it was adjusted with the amount of commission of Rs. 1.36 crores. 3. The TDS on the payment of commission expenses has also not been verified by the AO at the time of assessment. 4. The commission paid to the directors has also not been verified in terms of documents and basis of commission. 5. The commission income shown in the profit & loss account is for Rs. 17.73 crores. Its corresponding TDS works out for Rs. 66.98 lacs but the assessee has claimed TDS for Rs. 74.47 lacs in the computation of income. The AO has not verified this discrepancy. 6. The assessee has made the investments in group companies for Rs. 97.99 lacs in M/s Nagel Special Machines Pvt. Ltd. and Rs. 63.69 lacs in M/s Dango & Dienthal (India) Pvt. Ltd. respectively. At the same time the assessee has shown the advance given to M/s Nagel Special Machines Pvt. Ltd. for Rs. 6.20 lacs. Similarly there is a sundry debtors amount of Rs. 64.19 lacs in the debtors list of the assessee in the name of M/s Dango & Dienthal (India) Pvt. Ltd. Besides the above there were also advances shown by the assessee to others of Rs. 7.62 crores. The ld. CIT under section 263 of the Act that the above stated facts have not been verified by the AO at the time of assessment. 7. The amount of sales, service charges for installation and the expenses for travelling, exhibition etc. were not verified by the AO.
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 5 The ld. CIT u/s 263 of the Act after giving the opportunity to the assessee held that order passed by the AO is erroneous and prejudicial to the interest of the Revenue and accordingly directed to pass de-novo assessment as per law.
Being aggrieved by the order of ld. CIT u/s 263 of the Act, the assessee is in appeal before us.
Before us Ld. AR submitted paper book which is running pages from 1 to 76 and stated that all the details in relation to assessment was furnished at the time of original assessment. Ld AR submitted that as reported in the clause 21(B)(b) of TAR, liability of leave salary amount to Rs.21,90,943/- which has to be added back. Amount added back as per the assessment order was Rs.11,69,505/-. This is due to the fact that Rs.10,21,438/- being provision for leave in respect of earlier year was written back and the same has been deducted by the AO in his computation to arrive at the figure of Rs.11,69,505/- (21,90,943 – 10,21,438). These details are in the computation of income filed by the assessee and rightly considered by the AO and is a practice of every year so there is no error in this respect of assessment order. Ld. further stated that as per second point the clarification that the company is in the business of marketing of machinery tools through which agency commission is received and commission received from this business was Rs.19,10,40,625/- and payment of commission was Rs.1,36,59,529/- on which TDS on commission has been deducted and paid commission of Rs.83,32,880/- paid to the two general managers are not included in this and commission of the MD whole time Director and the two GM are part of their remuneration and hence have been shown under the heads “Director remuneration” and in case of GM under the head “Salary, wages bonus and gratuity” in Schedule 15 of the Accounts. If may be mentioned that since such commission paid is part of their salary and comes within the definition of salary u/s. 17(1)(iv) of the Act and TEs as applicable on alary as per Section 192 of the Act has been deducted and paid. As per Sec. 192 in case of salary TES has to be deducted at the time of payment and the same has been done. Ld. AR further submitted that Sec. 40(a)(ia) of the Act is
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 6 not applicable in case of TDS on salary and hence there is no violation in the order of AO as erroneous and prejudicial to the interest of Revenue.
On the other hand, Ld. DR vehemently relied on the impugned order of Ld. CIT.
We have heard the rival contentions of both the parties and perused the materials available on record. From the foregoing discussion, we find that the impugned order passed by AO has been considered erroneous and prejudicial to the interest of revenue on the ground that proper verification was not carried out by AO at the time of framing original assessment. In the case of insufficient enquiry, the courts have decided the issue in favour of revenue, therefore, we deem it fit that the impugned order passed by AO failed to take into account several aspects as highlighted by the Ld. CIT in his impugned order u/s. 263 of the Act. In this connection we rely in the judgment of Hon’ble Delhi High Court in the case of Gee Vee Enterprises Vs. ACIT (1975) 1975 CTR 0061 (DEL) : (1975) 99 ITR 0375
“The position and function of the ITO is very different from that of a civil Court. The statements made in a pleading proved by the minimum amount of evidence may be accepted by a civil Court in the absence of any rebuttal. The civil Court is neutral. It simply gives decision on the basis of the pleading and evidence which comes before it. The ITO is not only an adjudicator but also an investigator. He cannot remain passive in the face of a return which is apparently in order but calls for further inquiry. It is his duty to ascertain the truth of the facts stated in the return when the circumstances of the case are such as to provoke an inquiry. The meaning to be given to the word "erroneous'' in s. 263 emerges out of this context. It is because it is incumbent on the ITO to further investigate the facts stated in the return when circumstances would make such an inquiry prudent that the word "erroneous'' in s. 263 includes the failure to make such an inquiry. The order becomes erroneous because such an inquiry has not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. The company and the partnership in this case were formed in the same year with many members common in both. The fact that the company purchased the land but handed over construction work to the partnership even though the object of the company was to make such construction should naturally provoke a query as to why this was done. The partnership was required to be in existence as a genuine firm in the previous year before it could be registered under s. 185 of the Act. Such registration gives a substantial advantage to it for the purpose of taxation. In the very first assessment of the company and the firm, the advantage of the registration was given to the firm. The question would naturally arise whether the firm was formed merely for the purpose of getting a tax advantage. Assessee argued that there is nothing wrong if a legitimate advantage is sought by these means. But it was precisely for that reason that the ITO had to be satisfied that
ITA No.771/Kol2014 A.Y. 2009-10 Francis Klein & Co. Pvt. Ltd. vs. CIT, Kol-I Page 7 the firm had existed in the previous year genuinely. It cannot be said that the CIT could not be reasonably of the opinion that the order of the ITO was erroneous because previous inquiries were not made by the ITO. Nor can it be said that it was necessary for the CIT himself to make such inquiry before cancelling the order of assessment.—Rampyari Devi Sarogi vs. CIT (1968) 67 ITR 84 (SC) : TC57R.202 and Tara Devi Aggarwal vs. CIT 1973 CTR (SC) 107 : (1973) 88 ITR 323 (SC) : TC57R.206 relied on. CIT was justified in exercising his revisional jurisdiction on the ground that the ITO had not made sufficient enquiries before granting registration to the firm and it was not necessary for the CIT to have himself made enquiries before cancelling the assessment.” Respectfully, following the judgment of Hon’ble Delhi High Court in the case of Gee Vee Enterprises (supra) we do not find any reason to interfere in the impugned order passed by Ld. CIT. Hence, assessee’s appeal is dismissed.
In the result, assessee’s appeal stands dismissed. 6. Order pronounced in open court on 24/08/2016 Sd/- Sd/- (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp �दनांकः- 24/08/2016 कोलकाता / Kolkata आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-Francis Klein & Co. Pvt. Ltd. OM Tower, 7th Floor, Flat No. 701-702, 32 Chowringhee Road, Kolkata-71 2. ��यथ�/Respondent-CIT, Kolkata-1 P-7, Chowringhee Square, Kolkata-69 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड� फाइल / Guard file.
By order/आदेश से, /True Copy/ उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, कोलकाता