SHRI KISHAN JINDAL,KOLKATA vs. C.I.T - XV,KOLKATA, KOLKATA

According to the CIT the report of the Inspector only proves the identity of the unsecured creditors. The capacity and genuineness of the transactions was not established. On this ground order of the AO, according to the CIT was erroneous and prejudicial to the interest of the revenue.

CIT also noticed that the assessee received huge advances from the customers. CIT found that the assessee made single sales to M/s. Gel Marketing Ltd. The assessee also gave huge advances to M/s. Gel Marketing Ltd., and other partiers from time to time. CIT was of the view that these transactions were unusual and the AO failed to make inquiries on the above transactions.

In response to the show cause notice u/s.263 of the Act given to the Assessee on the line of reasoning given above, the assessee filed his reply pointing out that evidence filed by the assessee and the Inspectors report was sufficient for the AO to ITA No.781/Kol/2013-Sh.Shri Kishan Jindal A.Y.2008-09 come to a conclusion that the assessee has given a satisfactory explanation with regard to the unsecured creditors. There was no case for invoking the provision of section 263 of the Act on the said issue. The assessee also pointed out that paying advance against the purchase and receiving advance against sales was not an unusual practice and it is a very common feature in business. Besides the above the assessee also pointed out that full payment of advances were given by the assessee at the time of assessment and goods were supplied against these advances. The assessee therefore submitted that order of the order of the AO was not erroneous and prejudicial to the interest of the revenue. Jurisdiction u/s 263 of the Act cannot be invoked by the CIT.

CIT was however of the view that the AO failed to make proper inquiries with regard to the unsecured creditors. He was also of the view that the report of the Inspector was also similar in respect of all the unsecured creditors and this situation itself should have alerted the AO to make thorough probe. CIT was of the view that order of the AO should be set aside and AO should be directed to make proper inquiries and draw his conclusion. With regard to the advances received from the customers CIT held as follows :- “ 4(iii) Huge advances from customers, without corresponding sales or meager sales:- The assessee in his reply has submitted that it is very usual practice in this trade. I have perused these accounts. The assessee has obtained unsecured loans in the garb of customers' advances against sales and has squared up those other than by sales later on. The onus is heavier as no interest has been paid in these cases. For example loan of Rs. 5,00,000/- from M/S Gel Marketing Ltd has been repaid otherwise than by an account payee cheque or draft orders erroneous and prejudicial to the interest of revenue. The assessing officer is directed to make necessary enquiries and draw conclusions therefrom. 5. It is a settled position of law that the failure to make enquiries which are called for, on the facts of the case would itself make the assessment erroneous and prejudicial to the interest of revenue. The facts of the case warranted taking cognizance of the discrepancies noticed and detailed above. The A.O. didn't take even basic steps to verify this aspect. There is no reference to these even in the assessment order. The Hon'ble Supreme Court in the case of Rampyari Devi Saraogi-Vs-CIT{1968} 67 ITR 84{SC) and Smt. Tara Devi Aggarwal- VS-CIT{1973}8B ITR 323{SC) has held that in the absence of proper enquiries, the assessment order would become erroneous and prejudicial to the interest of the revenue. The Hon'ble Delhi High Court in the case of Gee Vee Enterprise -Vs-AddI.CIT{1975} 991TR 375 has held as under: ITA No.781/Kol/2013-Sh.Shri Kishan Jindal A.Y.2008-09 . "The reason is obvious. The position and function of the income tax Officer 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 pleading and evidence which comes before it. The Income-tax Officer is not only an adjudicator but also an investigator. He cannot remain passive in the face of return which is apparently in order but calls for further enquiry. It is his duty to ascertain the truth of facts stated in the return when the circumstances of case are such as to provoke an enquiry. The meaning to be given to the word "erroneous in section 263 emerges out of this context, It is because it is incumbent on the Income-tax Officer to further such an enquiry prudent that the word "erroneous" in section 263 includes the failure to make such an enquiry. The order becomes erroneous because such an enquiry 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." In view of facts and legal position stated above, it is hereby held that assessment order u/s. 143(3) of IT Act dt. 31.12.10 passed in this case for A.Yr. 2008-09 is erroneous in so far as it is prejudicial to the interest of revenue. Consequently, in exercise of the power conferred by Sec. 263 of the Act, the said assessment order dated 31.12.2010 is set aside, but only to the extent indicated in foregoing paragraphs. The Assessing Officer is directed to pass a fresh assessment order and re-compute the assessee's income after making further enquiries as directed in the foregoing paragraphs.”

Aggrieved by the order of CIT the assessee has preferred the present appeal before the Tribunal.

We have considered the submissions of the learned counsel for the assessee and the learned DR. The learned counsel for the Assessee reiterated stand of the Assessee as set out in the reply to the show cause notice u/s.263 of the Act besides relying on certain judicial pronouncements to which we will make a reference later. The learned DR relied on the order of the CIT u/s.263 of the Act and the decision of the Hon’ble Calcutta High Court in the case of Maithan International 375 ITR 123 (Cal).

We have considered the rival submissions. We agree with the contention put forth on behalf of the assessee that where an enquiry is conducted by the AO and he gets satisfied with the genuineness of the transaction, the CIT cannot intervene through revision for coming to a conclusion that the assessment order passed by the ITA No.781/Kol/2013-Sh.Shri Kishan Jindal A.Y.2008-09 AO is erroneous and prejudicial to the interests of the Revenue. The essence of the matter is that the AO should conduct enquiry to satisfy himself about the genuineness of transactions. What is an enquiry may have different shades in different circumstances. There cannot be straight jacket formula to positively conclude as to conducting or non-conducting of enquiry by the AO. In some cases, collection of necessary material by the AO may lead to an inference that he conducted enquiry. In some other cases, mere placing the documents on record cannot be equalized with conducting an enquiry. Where the facts of a particular transaction cry hoarse about their ingenuity and even a casual look at such facts, prima facie, divulges foul play, a mere placing of papers on record cannot at all be considered as conducting an inadequate enquiry. Such latter cases fall within the category of no enquiry at all because of the inaction of the AO to read a writing on the wall.

At this juncture, we would like to deal with the judgment of the Hon’ble jurisdictional High Court in the case of CIT Vs. Maithen International 375 ITR 123 (Cal). 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 ITA No.781/Kol/2013-Sh.Shri Kishan Jindal A.Y.2008-09 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-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 above enunciation of law by none other than the Hon’ble jurisdictional High Court, we have no hesitation in holding that the case under consideration is a glaring example of not making a relevant enquiry which amounts to no enquiry and is a case of non-application of mind by the AO. We therefore uphold the order of the CIT u/s.263 of the Act, in so far as it concerns direction to the AO to investigate regarding the unsecured loans appearing in the balance sheet of the Assessee.

As far as receipt of advances from customers by the Assessee and the complaint of the CIT in the order u/s.263 of the Act that the AO ought to have made investigation into such unusual practice which was not prevalent in the concerned trade, we are of the view that even in respect of these advances received against future supplies, proper enquiries ought to have been made by the AO before completing the Assessment because there were several suspicious circumstances which warranted a probe by the AO. Admittedly no such probe has been made by the AO. The reasons ITA No.781/Kol/2013-Sh.Shri Kishan Jindal A.Y.2008-09 given for upholding exercise of jurisdiction u/s.263 of the Act, in respect of unsecured loans received during the previous year would equally apply to these advances also.

For the reasons given above, we uphold the order u/s.263 of the Act and dismiss the appeal by the Assessee.

In the result appeal by the Assessee is dismissed.