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Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA
Before: Shri N.V.Vasusdevan & Shri Waseem Ahmed
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’) dated 25.03.2013. Assessment was framed by ITO Ward-5(3), Kolkata u/s 147/144 of the Act vide his order dated 22.12.2006 for assessment year 2000-01.
At the outset, it is noted that appeal is time barred by 81 days and in regard to this an application for condonation petition filed where assessee explained that the delay is occurred due to medically unfit of Director Shri
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 2 Pradeep Ganeriwala, who was looking after the taxation matter of the assessee-company. Ld. DR for Revenue submitted that considering delay he should not be having any objection to the Bench if considering the delay of condonation. This, in our considered opinion, that the assessee was prevented from sufficient and reasonable case in filing the appeal belatedly. The Hon'ble Supreme Court in the case of Collector Land Acquisition vs. Mst. Katiji & Ors. 167 ITR 471 (SC) has directed to adopt a pragmatic and liberal approach while considering the petition for condonation of delay. We, therefore, respectfully relying upon the above decision of Hon'ble Supreme Court and considering the facts of the case deem it proper to condone the delay in respect of the appeal before us and admit the same for hearing on merits.
Shri Manish Tiwari, Ld. Authorized Representative appearing on behalf of assessee and Shri Rajat Subhna Biswas appearing on behalf of Revenue.
Grounds raised by assessee are reproduced below:- “1. FOR THAT none of the conditions precedent for the assumption of jurisdiction u/s. 263(1) of the Income Tax Act, 1961 existed and/or have been complied with and/or fulfilled on the part of the Ld. Commissioner of Income Tax, Kolkata-I, Kolkata in the instant case and the specious order dated 25-03-2013 passed u/s 263 of the Income Tax Act, 1961 in pursuance thereto is therefore Authorities Below initio void, ultra vires and ex-facie null in law.
FOR THAT the Ld. Commissioner of Income Tax, Kolkata, Kolkata acted unlawfully in setting aside the assessment order dated 22-12- 2006 framed u/s. 143(3) of the Income Tax Act, 1961 by the Ld. Income Tax Officer, Ward 5(3), Kolkata on the tenuous premise of assuming the opening stock for the assessment year 2001-2002 at Rs.1,44,77,950/- to be correct without any basis is fraught with the taint of illegality and the impugned finding reached on that behalf is absolutely arbitrary, unreasonable and perverse.
FOR THAT the Ld. Commissioner of Income Tax, Kolkata-I, Kolkata erred in directing the Ld. Income Tax Officer, Ward 5(3), Kolkata to pass a de-novo assessment order without factually appreciating that there was no evidence leading to the specious finding of “understatement of
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 3 closing stock” in the sum of Rs.29,57,082/- in the impugned assessment year and the purported conclusion reached on that account is completely unfounded, unjustified and untenable in law.
FOR THAT the Ld. Commissioner of Income Tax, Kolkata-I, Kolkata grievously failed to appreciate the facts and circumstances of the instant case in the proper perspective and thus misled himself in assuming jurisdiction u/s. 263 of the Income Tax Act, 1961 leading to revising the assessment order framed by the Ld. Income Tax Officer, Ward 5(3), Kolkata basing on an extraneous consideration not germane to the issue in dispute and the alleged findings on that behalf are wholly illegal, illegitimate and infirm in law.
FOR THAT the order passed by the Ld. Commissioner of Income Tax, Kolkata-I, Kolkata revising the order framed by the Ld. Income Tax Officer, Ward 5(3), Kolkata without complying with the terms of s. 263(1) of the Act is otherwise bad in law and on facts and the ends of justice necessitate that it be set aside.”
The common issue raised by assessee in this appeal is that Ld CIT passed order u/s 263 of the Act erred in holding that the order of AO is erroneous in so far as it is prejudicial to the interest of Revenue.
The facts in brief are that assessee in the present case is a Limited Company and engaged in the manufacturing business dipped nylon tyre. The AO framed the assessment for the year under consideration after making certain addition/disallowance to the total income of assessee. However, Ld. CIT found that the order of AO is erroneous in so far as it is prejudicial to the interest of revenue on account of the difference between the closing stock and opening stock of the subsequent year for Rs.29,57,082/-. It was observed by the Ld.CIT from the schedule B of the profit & loss account that the assessee for the AY 2000-01 has declared the closing stock of Rs.1,15,20,868/- and has declared the opening stock for the AY 2001-02 of Rs.1,44,77,950/- in the profit & loss account. The Ld. CIT opined that considering the return of income for the AY 2001-02 correct then there was understatement of income by Rs. 29,57,082/- for the AY 2000-01. Accordingly, Ld.CIT issued notice u/s 263 of the Act for clarification on the above subject-matter. However the assessee
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 4 failed to appear before the Ld. CIT in compliance of the notice issued u/s 263 of the Act. Accordingly the Ld. CIT relying on the assessment records available before him held that the order of AO is erroneous in so far as it is prejudicial to the interest of Revenue. Hence, this matter was restored back to the file of AO for fresh adjudication after necessary verification of the facts and reasonable opportunity to assessee.
Being aggrieved by this order of Ld. CIT assessee preferred an appeal before us.
The ld. AR before us submitted audited financial statements for both the AYs i.e. 2000-01 & 2001-02 and drew our attention on the opening & closing stock of both the years where the correct figures of Rs.1,15,20,868/- were mentioned in the trading and profit & loss account. At the end, ld. AR prayed that the order is not erroneous in so far is prejudicial to the interest of Revenue.
On the contrary the ld. DR submitted that the assessee has been very in-co-operative in the assessment proceedings and did not attend the hearing at the appellate stage in spite of the fact that the order was restored by the Hon’ble ITAT to ld. CIT and vehemently supported the order passed by the ld. CIT.
We have heard rival contentions of both the parties and have also gone through the materials available on record. Now from the aforesaid discussion we find that the ld. CIT treated the order of the AO erroneous in so far as it is prejudicial to the interest of revenue. It is because that the AO has not verified the difference between the closing stock for the AY 2000-01 and opening stock for the AY 2001-02 for Rs. 29,57,082/- which has resulted in the understatement of income for both the years. Therefore the Ld. CIT held the order erroneous in so far prejudicial to the interest of Revenue. Now to arrive
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 5 at the correct conclusion of the case, we deem it necessary to reproduce the relevant provisions of section 263 of the Act. (1) The [Principal Commissioner or] Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he, my, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment….”
8.1 The sum and substance of the above reproduced section 263(1) can be summarized in the following points:-: 1) The commissioner may call for an examine the record of any proceeding under the Act; 2) If he considers that the order passed by the AO is (i) Erroneous; and (ii) Is prejudicial to the interest of Revenue; 3) He has to give an opportunity of hearing in this respect to the assessee; and 4) He has to make or cause to make such enquiry as he deems necessary; 5) He may pass such order thereon as the circumstances of the case justify including, (i) An order enhancing or, (ii) Modifying the assessment or (iii) Cancelling the assessment and directing a fresh assessment.
8.2 Now in the context of above words, we have to examine as to whether the order of the Ld. CIT is a valid order in the light of the above stated points/ provisions of section 263 of the Act. In the case in hand, the issue is that the assessee has shown closing stock at lesser value by the amount of Rs. 29,57,082/- for the AY 2000-01. However from the facts, we find that the issue
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 6 has been originally adjudicated by this Hon’ble Kolkata Tribunal by restoring back to ld. CIT(A) for fresh adjudication vide ITA No. 1844/Kol/2010 on dated 06.01.2012 as the assessee could not appear before the ld. CIT(A) and accordingly the matter was adjudicated ex-parte. However at this juncture, we find important to highlight the finding of the aforesaid order which reads as under:- “8. We have heard the parties and perused the material placed on record there is no dispute to the fact that considering the opening balance of the subsequent assessment year the ld. CIT presumed discrepancy in the closing balance of the assessment year under consideration and for this he has not pointed out any irregularity or defect in the accounts maintained for the assessment year under consideration which, according to him, the ld. AO failed to apply his mind in curse of assessment proceedings. However, at the same time, we observe that only once the case was fixed for hearing on 16/5/2008 and in response the assessee filed a petition dated 15/5/2008 seeking adjournment of the hearing on the ground of illness of the person conversant with the matter. The ld. CIT rejecting such petition for want of medical certificate passed ex parte order u/s. 263 of the Act and sent the assessment back to the ld. AO for doing afresh. The ld. CIT in support of his action has relied on the decisions of Hon'ble Supreme Court in the case of CIT vs. Hukumchand Mohanlal [82 ITR 624 (SC)] and Gita Devi Aggarwal vs. CIT [776 ITR 496 (Hon'ble Supreme Court)]. However, the facts of the present case are distinguishable as in both the above cases the assessee did not avail the opportunity which was provided to them, whereas in the case before us the assessee duly complied with the notice of hearing by making a prayer for adjournment. Therefore, the decisions cited by the ld. CIT are not applicable to the facts of the present case. Considering the above, in our considered opinion, the assessee was not provided with reasonable and adequate opportunity to represent and explain the case before the ld. CIT. we, therefore, deem it proper to restore the matter to the file of the ld. CIT for fresh adjudication after affording adequate opportunity of being heard to the assessee. We order accordingly.”
We also further find from the audited financial statement of the assessee that the closing and opening stock has been correctly recorded and there was no mismatch in the figures as observed by the Ld. CIT. The necessary details of the stock as recorded in the financial statements of the assessee are recorded as below.
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 7 As at As at 31.03.00 31.03.99 SCHEDULE F CURRENT ASSETS, LOANGS & ADVANCES (Also Refer Schedule Q) A. CURRENT ASSETS: (i) Inventories (As taken, valued & certified by the management) Raw Materials (At Cost) 3,859,187 12,610,970 Chemicals (At Cost) 474,240 1,928,795 Fuel (At Cost) 0 102,747 Materials in Transit (At Cost) 8,388,578 4,966,606 Finished Goods (At Cost or Market Price, whichever is lower) 11,520,868 4,585,788 29,523,445 27,729,902 (ii) Sundry Debtors: (Unsecured, Considered Good) (a) Debts Outstanding for a period 44,963,002 58,702,067 Exceeding six months (b) Other debts 44,883,130 49,508,329 89,846,132 108,210,396 Carried Over 119,369,577 135,940,298
2000 1999 SCHEDULE K Current Previous INCRERASE IN STOCK OF WORK IN PROGRESS Year Year & FINISHED GOODS Closing Stock: Finished Goods 11,520,868 4,585,788 Work in process 5,280,572 4,966,606 ---------------- ----------------- 16,801,440 9,552,394 ---------------- Less: Opening Stock Finished goods 4,584,788 5,726,194 Work in process 4,966,606 2,008,934 -------------- --------------- 9,552,394 7,735,12 ---------------- Increase in stock 7,249,046 1,817,26 ================================================================= As at As at 31.03.01 31.03.00 SCHEDULE F CURRENT ASSETS, LOANS & ADVANCES (Also Refer Schedule P) CURRENT ASSETS: (i) Inventories (As taken, valued & Certified by the management) Raw Materials (At Cost) 19632145 3859187 Chemicals (At Cost) 883809 474240 Fuel (At Cost) 1232884 Materials in Transit (At Cost) 4372791 8388578 Stock-in-process(At Cost) 4052048 5280572 Finished Goods (At Cost or Market) 2446616 11520868 -------------- ---------------- 31511293 29523445 (ii) Sundry Debtors: (Unsecured, Considered Goods)
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 8 (a) Debts Outstanding for a period Exceeding Six Months 36671963 44963002 (b) Other debts 40217678 44883130 ----------------- ------------- 76889641 89846132 ---------------------------------------------------------------------------------------------------------------- Carried over 108400934 119369577
As at As at 31.03.01 31.03.00 SCHEDULE J INCREASE / DECCREASE IN STOCK Closing Stock: Finished Goods 2446616 11520868 Work-in-Process 4052048 5280572 ------------ ---------------- 6498664 16801440 ========= Less: Opening Stock Finished goods 11520868 4585788 Work-in-Process 5280572 4966606 ---------------- ----------------- 16801440 9552394 ==========
Increase / Decrease in stock 10302776 ====================================================================== From the above we find no infirmity in the figures of the opening/ closing stock for the year under consideration. Accordingly, in our considered view we find the order of AO is neither erroneous nor prejudicial to the interest of Revenue. Therefore the order of the Ld. CIT cannot be held to be sustainable in law and the same is accordingly set aside. This ground of assessee’s appeal is allowed.
In the result, assessee’s appeal stands allowed. Order pronounced in the open court 18/05/2016
Sd/- Sd/- (N.V.Vasudevan) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata,
*Dkp �दनांकः- 18/05/2016 कोलकाता ।
ITA No.2276/Kol/2013 A.Y.2000-01 Bripranil Inds. Ltd. v. CIT,Kol-1, Page 9
आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-Bripranil Inds. Ltd. 22, Biplabi R.B.Bose Road, Room No.41 4th Floor, Kolkata-01 2. ��यथ�/Respondent-CIT, Kol-1, Aayakar Bhavan, P-7, Chowringhee Sq., 7th Fl, Kol-69 3. संबं�धत आयकर आयु�त / Concerned CIT Kolkata 4. आयकर आयु�त- अपील / CIT (A) Kolkata 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 ।