M/S AADHAR ASSOCIATES,BHOPAL vs. PR CIT-2, BHOPAL

This appeal by the assessee is directed against the order dated 03.09.2019 of Pr. Commissioner of Income Tax (in short Pr. CIT, passed u/s 263 of the Income Tax Act for Assessment Year 2015-16.

Aadhar Associate Page 2 of 13 further submitted that Mr. J.C. Sharma was undergoing treatment of stone and was bed ridden since 2019. He has referred to the medical record of Shri J.C Sharma and submitted that due to unavoidable circumstances and illness of Shri J.C. Sharma the assessee could not file the appeal in time and there is a delay of 330 days. He has prayed that the delay in filing the appeal may be condoned and the appeal of the assessee may be admitted for adjudication on merits.

3. On the other hand, ld. DR has submitted that the assessee has not explained sufficient cause of delay in filing the appeal. He has objected the deletion of delay.

“1. The Id CIT was not justified in passing order u/s. 263, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. The Id CIT was not justified in initiating proceedings u/s. 263, as the order of the Id AO was neither erroneous not prejudicial to the interest of the revenue; and thus the revision order deserves to be quashed.

3. The Id CIT failed to notice that the issues on which jurisdiction u/s. 263 was exercised; were already inquired during the assessment

Aadhar Associate Page 3 of 13 u/s. 143(3);and thus the order u/s. 143(3) cannot be said to be erroneous;

4. The Id CIT was not justified in not giving the revenue impact of the alleged transactions, therefore what prejudice was caused to the revenue is unknown.”

5. Ld. AR of the assessee has submitted that the return of income was taken up for limited scrutiny under CASS. The AO has reproduced the reasons for scrutiny in the assessment order itself. The AO has also raised questionnaire while issued notice u/s 142(1) and asked the assessee to produce documents regarding the nature of business, mismatch of business income with high closing stock. Thus, the AO conducted a due inquiry on the issue of limited scrutiny. The assessee filed its reply along with relevant details to the show cause notice issued u/s 142(1) of the Act. The AO on verification of the record filed by the assessee was satisfied and found that information supplied by the assessee along with ledger cash book and bank statements are found to be acceptable. Thus, it is not a case of lack of inquiry on the part of the AO while the passing the assessment order.

6. The Pr. CIT has invoked the provision of section 263 of the Act without jurisdiction once the AO has conducted a proper inquiry. He has relied upon the decision of Mumbai Bench of this Tribunal in case of Trident Estate P. Ltd. vs. ITO 190 ITD 364 as well as following decisions:

1.Balvindr Kumar vs. Pr. CIT 125 taxmann.com 83 2. M/s. R & H Property Developer Pvt. Ltd. in ITANo.1906/Mum/2019 dated 30.07.2019 7. Ld. AR has also relied upon the decision dated 14.11.2022 of the Coordinate Bench of this Tribunal in case of M/s. J.C. Sharma and Sons vs. Pr. CIT in ITANo.299/Ind/2020 dated 14.11.2022, a group concern of the assesse arising from the revision order passed u/s 263 of the Act on similar facts. Thus, the Ld. AR has submitted that in view of the decisions

Aadhar Associate Page 4 of 13 of this tribunal the revision order passed by the Pr. CIT is not sustainable and liable to be quashed. The AO has taken a possible view while passing the assessment order then the Pr. CIT is not permitted to invoke the provision of section 263 of the Act merely because he does not agree with view of the AO.

“4. Briefly stated the facts are such that the assessee-firm is engaged in real-estate business. It filed return of income of the relevant AY 2015-16 on 27.09.2015 declaring a total income of Rs. 39,94,050/-. The case was selected for “Limited Scrutiny” and statutory notices were issued u/s 143(2) / 142(1) by Ld. AO and the same were duly complied by the assessee. Finally, Ld. AO completed assessment u/s 143(3) at a total income of Rs. 44,19,050/-. Subsequently, Ld. PCIT examined the records of proceeding conducted by Ld. AO and found the assessment-order as erroneous in so far it is prejudicial to the interest of revenue for the reason mentioned below in the show-cause notice dated 05.08.2019 issued by him u/s 263:

Aadhar Associate Page 5 of 13 “Please refer to the order u/s 143(3) of the IT Act, 1961 dated 25.04.2017 passed by the DCIT-5(1), Bhopal for A.Y. 2015-16, whereby total income was assessed at Rs. 44,19,050/- 2. From the case records of assessee for A.Y.2015-16, it was noticed that the case of the assessee was selected for the following reasons under the Limited scrutiny:- (i) Real estate business with high closing stock (Verify whether assessee has adopted percentage completion method) (ii) Higher turnover reported in Service Tax Return compared to ITR and assessee deposited large amount of cash in saving bank account. (iii) Sale of property reported in form 26QB. (iv) Large increase in Sundry Creditors with respect to turnover as compared to preceding year. (v) Large other expenses claimed in the Profit & Loss a/c. (vi) Mis-match in sales turnover reported in Audit Report and ITR (vii) Large increase in Sundry creditors and reduction in business income as compared to preceding year.” On perusal of case records and assessment order dated 25.04.2017, it is observed that the assessing officer has failed to examine and verify the core issues for which the case was selected in limited scrutiny.

12. Regarding Explanation 2 to section 263, as claimed by Ld. PCIT in his order, it has been judicially held that the said Explanation does not give unfettered power to the PCIT to assume revisional-jurisdiction to revise every order of the Assessing Officer to re-examine the issues already examined during assessment-proceeding. It is judicially interpreted in several decisions that the intention of legislature behind introduction of Explanation 2 could not have been to enable the PCIT to find fault with each and every assessment-order in unlimited terms, since such an interpretation would lead to unending litigation and there would not be any point of finality of assessment-proceeding done by Ld. AO. 13. At this stage, we refer a recent decision of ITAT, Rajkot in M/s Pramukh Realty, Junagadh, dated Page 6 of 13 Aadhar Associate Page 7 of 13 30.06.2022, where the Hon’ble Bench has extensively dealt a similar case where (i) the assessee had filed details / documents to Assessing Officer during assessment-proceeding; (ii) the AO had considered the same and passed assessment-order thereafter; (iii) Ld. PCIT has made revision invoking Explanation 2 to section 263. After a thorough analysis, the Hon’ble Bench has held that in such circumstances, revision u/s 263 cannot be done. The relevant paragraphs of the decision are reproduced below: “5. The learned AR before us filed a paper book running from pages 1 to 157 and contended that all the necessary details about the advances received from the parties, sales shown in the financial statement and details of the service tax returns were filed during the assessment proceedings. The learned AR further contended that the assessment was framed by the AO after considering the necessary details and verification and application of mind. The learned AR in support of his contention drew our attention on pages 151 to 153 of the paper book where the copy of the notice under section 142(1) of the Act was placed. Likewise, the learned AR also drew our attention on pages 154 to 157 of the paper book where the reply of the assessee in response to the notice issued under section 142(1) of the Act was placed. Thus, the learned AR contended that there cannot be said that the assessment order is erroneous and causing prejudice to the interest of Revenue in the given facts and circumstances on account non-verification.

Aadhar Associate Page 8 of 13 proper. The Commissioner of Income Tax by invoking revisionary powers under section 263 of the Act cannot impose his own understanding of the extent of inquiry. There were a number of judgments by various Hon’ble High Courts in this regard. 7.2 Delhi High Court in the case of CIT Vs. Sunbeam Auto 332 ITR 167 (Del.), made a distinction between lack of inquiry and inadequate inquiry. The Hon’ble court held that where the AO has made inquiry prior to the completion of assessment, the same cannot be set aside u/s 263 of the Act on the ground of inadequate inquiry. The relevant observation of Hon’ble Delhi High Court reads as under: “12. ….. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of “lack of inquiry”, that such a course of action would be open. ——— From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have Page 8 of 13 Aadhar Associate Page 9 of 13 estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed.

Aadhar Associate Page 10 of 13 passed without making enquiries or verification, which should have been made. In our considered view, this provision shall apply, if the order has been passed without making enquiries or verification which a reasonable and prudent officer shall have carried out in such cases, which means that the opinion formed by Ld Pr. CIT cannot be taken as final one, without scrutinising the nature of enquiry or verification carried out by the AO vis-à-vis its reasonableness in the facts and circumstances of the case. Hence, in our considered view, what is relevant for clause (a) of Explanation 2 to sec. 263 is whether the AO has passed the order after carrying our enquiries or verification, which a reasonable and prudent officer would have carried out or not. It does not authorise or give unfettered powers to the Ld Pr. CIT to revise each and every order, if in his opinion, the same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant.” 7.5 The Hon’ble Supreme Court in recent case of Principal Commissioner of Income-tax 2 v. Shree Gayatri Associates*[2019] 106 taxmann.com 31 (SC), held that where Pr. CIT passed a revised order after making addition to assessee's income under section 69A in respect of on-money receipts, however, said order was set aside by Tribunal holding that AO had made detailed enquiries in respect of such on- money receipts and said view was also confirmed by High Court, SLP filed against decision of High Court was liable to be dismissed. The facts of this case were that pursuant to search proceedings, assessee filed its return declaring certain unaccounted income. The Assessing Officer completed assessment by making addition of said amount to assessee's income. The Principal Commissioner passed a revised order under section 263 on ground that Assessing Officer had failed to carry out proper inquiries with respect to assessee's on money receipt. In appeal, the Tribunal took a view that Assessing Officer had carried out detailed inquiries which included assessee's on-money transactions and Tribunal, thus, set aside the revised order passed by Commissioner. The Hon’ble High Court upheld Tribunal's order. The Hon’ble Supreme Court while dismissing the SLP filed by the Department held as under:- Page 10 of 13

Aadhar Associate Page 11 of 13 “We have heard learned counsel for the Revenue and perused the documents on record. In particular, the Tribunal has in the impugned judgment referred to the detailed correspondence between Assessing Officer and the assessee during the course of assessment proceedings to come to a conclusion that the Assessing Officer had carried out detailed inquiries which includes assessee's on-money transactions. It was on account of these findings that the Tribunal was prompted to reverse the order of revision. No question of law arises. Tax Appeal is dismissed”. 7.6 The Supreme Court in the another recent case of Principal Commissioner of Income-tax-2, Meerut v. Canara Bank Securities Ltd [2020] 114 taxmann.com 545 (SC), dismissed the Revenue’s SLP holding that 263 proceedings are invalid when AO had made enquiries and taken a plausible view in law, with the following observations: “Having heard learned counsel for the parties and having perused the documents on record, we see no reason to interfere with the view of the Tribunal. The question whether the income should be taxed as business income or as arising from the other source was a debatable issue. The Assessing Officer has taken a plausible view. More importantly, if the Commissioner was of the opinion that on the available facts from record it could be conclusively held that income arose from other sources, he could and ought to have so held in the order of revision. There was simply no necessity to remand the proceedings to the Assessing Officer when no further inquiries were called for or directed” 7.7 From an analysis of the above judicial precedents, the principle which emerges is that the phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an Assessing Officer adopts one of the course permissible in law and it has resulted in loss of revenue; or where two views are possible and the Assessing Officer has taken one view with which the Commissioner of Income-tax does not agree, it cannot be treated as an erroneous order causing prejudice to the interests of the Revenue unless the view taken by the Assessing Officer is unsustainable in law, or the AO has completely omitted to make any enquiry altogether or the order demonstrates non-application of mind. 7.8 Now in the facts before us, in the case of the assessee the AO during the course of assessment proceedings, made enquiries on this issue and after consideration of written Page 11 of 13 Aadhar Associate Page 12 of 13 submissions filed by the assessee and documents / evidence placed on record, framed the assessment under section 143(3) of the Act without making the addition of the amount as note above. This fact can be verified from the notice under section 142(1) of the Act by the AO and submission in reply of the assessee against such notice. XXX 7.9 From the above it is revealed that it is not the case that the AO has not made any enquiry. Indeed the Pr. CIT initiated proceedings under section 263 of the Act on the ground that the AO has not made enquiries or verification which should have been made in respect of cash deposited during the demonization period. It is not the case of the Pr. CIT that the Ld. AO did not apply his mind to the issue on hand or he had omitted to make enquiries altogether. In the instant set of facts, the AO had made enquiries and after consideration of materials placed on record accepted the genuineness of the claim of the assessee. 7.10 At this juncture, it is also important to note that the learned PCIT in his order passed under section 263 of the Act has made reference to the explanation 2 of section 263 of the Act. It was attempted by the learned PCIT to hold that there were certain necessary enquiries which should have been made by the AO during the assessment proceedings but not conducted by him. Therefore, on this reasoning the order of the AO is also erroneous insofar prejudicial to the interest of revenue. In this regard, we make our observation that the learned PCIT has also not specified the nature and the manner in which the enquiries which should have been conducted by the AO in the assessment proceedings. Thus, in the absence of any specific finding of the learned PCIT with respect to the enquiries which should have been made, we are not convinced by his order passed under section 263 of the Act.”

11. Since the facts and circumstances in both the cases of the group concern are identical therefore following the decision of the Coordinate Bench of this Tribunal in case of Shri J.C. Sharma & Sons (supra) the Aadhar Associate Page 13 of 13 impugned order of Ld. Pr. CIT passed u/s 263 is set aside and order passed by the AO u/s 143(3) is restored.

Order pronounced in the open court on 31.05.2023.