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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: SHRI WASEEM AHMED & SHRI SIDDHARTHA NAUTIYAL
Assessee by : Shri Mehul Ranpura, A.R Revenue by : Shri Aarsi Prasad, CIT.D.R सुनवाई क� तारीख/Date of Hearing : 06/07/2022 घोषणा क� तारीख /Date of Pronouncement: 07/09/2022 आदेश/O R D E R PER BENCH :
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Principal Commissioner of Income, Rajkot-1, dated 09/02/2022 arising in the matter of revision order passed under s. 263 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2017-18.
The only interconnected issue raised by the assessee is that the learned Principal CIT erred in holding the assessment framed under section 143(3) of the Act as erroneous insofar prejudicial to the interest of Revenue.
The brief facts are that the assessee is a private ltd. company and engaged in the business of civil construction activity. The assessment in the case of the assessee was completed under section 143(3) of the Act vide order dated 20-12- 2019 by accepting returned income at Rs. 34,01,984/- only.
The PCIT on examination of the assessment records of the assessee found that the assessee during the demonetization period deposited the cash of Rs. 2,10,48,000/- on different dates being the initial deposit of Rs. 75 lakh as on 03-12- 2016. The learned PCIT was of the opinion that if the assessee has cash on hand for Rs. 2,10,48,000/- before demonetization then it should have deposited the entire cash at a time and not on 5 different dates. Thus it means that the assessee has accepted cash of Rs. 1,35,48,0000/- (Rs. 2,10,48,000 – 75 lakh) in demonetized currency after announcement of demonetization of scheme. This fact was not investigated by the AO during the assessment proceeding.
4.1 The learned PCIT also found that the assessee claimed labour charges of Rs. 9,12,04,615/- only. However on perusal of voucher it was revealed that the voucher were singed by the same person who has prepared the same. Likewise, there was no voucher number mentioned on the vouchers and the voucher were not recorded in books on the same day. Accordingly, the learned PCIT was of the view that labour charges claimed by the assessee is not genuine but fabricated to reduce the tax liability. As such, the AO in the assessment proceeding has not properly verified the labour charges paid in cash.
4.2 Thus, the learned PCIT initiated the proceedings under section 263 of the Act vide show cause notice dated 17th January 2022 for non-verification of cash deposit made during demonetization in different installment and not proper enquiry conducted with respect to labour charges paid in cash.
The assessee in response to such show cause notice submitted that during the assessment proceeding detailed enquiry was made by the AO with regard to cash deposit and necessary details were duly submitted being cash book, cash flow for period starting from 1-04-2016 to 8-11-2016, 09-11-2016 to 31-12-2016 and 01-01-2017 to 31-03-2017. It was submitted that there was opening cash balance of Rs. 3,51,30,942/- as on 01-04-2016 duly verifiable from audited financial statement, further cash of Rs. 3.19 crores were withdrawn during the period from 01-04-2016 to 08-11-2016 and cash expenses were incurred during the said period for Rs. 4,12,56,621/- only. Thus, there was cash balance of Rs. 2,57,74,321/- as on 09-11-2016 out of which 2,10,48,000/- were deposited in the bank account. Thereafter, the AO after verifying all these details and application of mind accepted the veracity of the cash deposit. Thus, the assessment order does not suffer from any error on this count and observation of learned PCIT is factually wrong that no verification was made by the AO during the assessment proceedings.
5.1 With regard to labour charges the assessee submitted that the observation of the learned PCIT is based on wrong appreciation of facts. The voucher were prepared by cashier or subordinate staff duly signed or thumb by recipient on revenue stamp in case of payment over Rs. 5,000/-. It is not mandatory that vouchers should reflect voucher number. Further considering the size and number of project at different locations it is impractical to have number on each and every voucher. The vouchers were collected from the supervisor of the site and entered in the books on aggregate basis therefore allegation that amount in voucher were not recorded in ledger account on same day is factually wrong.
5.2 The assessee also submitted that learned PCIT has to pinpoint specific error in the order of the AO before setting aside the same under section 263 of the Act, and requested to consider the its submission and decide the issue on merit rather than leaving on the mercy of the AO.
5.3 However, the ld. PCIT disagreed with the submission of the assessee and held that the assessee regularly withdrawing cash for making payment to labour. Therefore, the assessee was not required and no reason to keep such huge cash in hand. Hence it is apparent that the assessee has shown such huge opening cash balance in the books to deposit the old currency in bank account during the demonetization period. But the AO not made enquiry on this angel.
5.4 Further the assessee is incurring huge labour expenses in cash on basis of self-made voucher which cannot be independently verified. The assessee should have maintained some identity of the labourer to whom cash was paid but no such detail was maintained. Therefore, to verify the veracity of the same at least spot inquiry should have been made. But the AO without conducting proper enquiry allowed the claim of the assessee in entirety. Thus the same amount to no enquiry has been made by the AO with respect the labour expenses which is erroneous in so far prejudicial to the interest of the revenue. Hence, the learned PCIT in view of the above, set aside the order of the AO under section 263 of the Act for fresh assessment.
Being aggrieved by the order of the learned PCIT, the assessee is in appeal before us.
The learned AR before us filed a paper book running from pages 1 to 146 and contended that all the necessary details about the source of deposits of cash in bank were filed during the assessment proceedings. The learned AR in support of his contention drew attention on pages 20 to 21 and pages 39 to 41 of the paper book where the question raised by the AO with regard to cash deposit and reply made by the assessee were placed. Thus, it was submitted by the learned AR that there were detailed enquiries made by the AO and thereafter only, he accepted the genuineness of the cash deposit.
7.1 Likewise, the learned AR submitted that the necessary details for labour charges were furnished during the assessment proceedings along with the vouchers in response to the question raised in the notice issued under section 142(1) of the Act.
On the contrary, the learned DR before us vehemently supported the order of the ld. PCIT.
We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the present case relates whether the assessment order has been passed by Ld. AO without making inquiries or verification with respect to the cash deposited by the assessee in the bank as discussed above and hence the assessment is erroneous insofar prejudicial to the interest of the Revenue and thus requiring revision by Pr. CIT u/s 263 of the Act.
9.1 An inquiry made by the Assessing Officer, considered inadequate by the Commissioner of Income Tax, cannot make the order of the Assessing Officer erroneous. In our view, the order can be erroneous if the Assessing Officer fails to apply the law rightly on the facts of the case. As far as adequacy of inquiry is considered, there is no law which provides the extent of inquiries to be made by the Assessing Officer. It is Assessing Officer’s prerogative to make inquiry to the extent he feels 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.
9.2 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 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.
Thus, even the Commissioner conceded the position that the Assessing Officer made the inquiries, elicited replies and thereafter passed the assessment order. The grievance of the Commissioner was that the Assessing Officer should have made further inquires rather than accepting the explanation. Therefore, it cannot be said that it is a case of ‘lack of inquiry’.”
9.3 The Hon’ble Bombay High Court in case of Gabriel India Ltd. [1993] 203 ITR 108 (Bom), discussed the law on this aspect in length in the following manner: “The consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity.
9.4 The Mumbai ITAT in the case of Sh. Narayan Tatu Rane Vs. ITO, dt. 06.05.2016 examined the scope of enquiry under Explanation 2(a) to section 263 in the following words:- “20. Further clause (a) of Explanation states that an order shall be deemed to be erroneous, if it has been passed without making enquiries or verification, which should have been made. In our considered view, this provison 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.”
9.5 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:- “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”
9.6 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”
9.7 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.
9.8 Now in the facts before us, in the case of the assessee the AO during the course of assessment proceedings, made enquiries on the issue of cash deposits during the demonetization period and after consideration of written submissions filed by the assessee and documents / evidence placed on record, and then framed the assessment under section 143(3) accepting the genuineness of cash deposit. This fact can be verified from the notice issued under section 142(1) of the Act by the AO and submission in reply of the assessee against such notice. i. Notice dated 09-11-2019 is placed at page no. 20 to 21 of paper book
From the perusal of ITS details of the assessee company, it is gathered that during demonetization period assessee company has deposited Rs.70,00,000/- in bank account no.03798710000056 and Rs.50,00,000/- in Account No.03798470000046 held with HDFC bank. In this connection you are requested to provide following details documents. Name PAN and Date of deposit Amount deposited Nature/reason of Address of the deposit depositor
b. If the amount was deposited by you, whether the source income was offered to tax in current or earlier years. If yes, please submit the proof in support of your claim. c. Copy of cash book from 1/4/2015 to 31/03/2017. (If books are not prepared, please give date wise explanation regarding nature and sources of cash regards deposited in you bank accounts during the period) d. Details of cash flow during the FY 2016-17 in following manner. Particulars From 01/04/2016 From 09/11/2016 From 31/12/2016 to 08/11/2016 to 30/12/2016 to 31/03/2017 Opening balance of cash on hand Add: 1.Cash received from sales Add: 2. Cash received from debtors Add: 3.Cash received from other activities (Description of other activity) Add: 4.Cash withdraw from banks Add: 5.Loans received in cash Less: 1.Cash paid for purchase 2.Cash paid to creditors Less: 3.Cash paid for other activities (Description of other activity) Less: 4.Cash deposited in banks Less: 5.Loans provided in Cash Less: Closing balance of cash on hand e. Details of cash deposits made during de-monetization period in following table along with certificate of bank for the same. Sr.No Name of bank and Date of Amount Description of Remarks Account number deposit deposited notes deposited (e.g Old R.500 Old Rs.1000 or New Currency notes) A B C D E F f. Further, as per the audit report assessee company has deposited total SBINs of worth Rs.2,10,48,000/- in banks but same has not been reported in the ITR-6. Please submit detailed explanation of the same. i. Reply dated 28-11-2019 is placed ate page no.31 to 41 of paper book
Regarding cash deposit during demonetization period, we would like to submit as under: (a) Source of Cash Deposit:
Name, PAN and Date of Amount Deposited Nature/reason of Address of Deposit Deposit Depositors Vinay Infratech Pvt. 03/12/2016 75,00,000/- The cash was Ltd. 05/12/2016 75,00,000/- deposited out of the PAN: AADCV4950C cash withdrawal 06/12/2016 45,00,000/- 110-112, Silver from banks during 09/12/2016 5,48,000/- Chamber, Tagore the earlier period 19/12/2016 10,00,000/- Marg, Rajkot Total Rs. 2,10,48,000/- (b) The amount was deposited by the company out of the cash withdrawal from banks during the earlier period only but not from the income earned. Hence, no question arose regarding source of income and its taxability. (c) Copy of cash book and bank book for FY 2015-16 and FY 2016-17 is submitted herewith at point no.14 above. (d) Details of Cash flow during FY 2016-17. Particulars From From From 01/04/2016 to 09/11/2016 to 31/12/2016 to 08/11/2016 30/12/2016 31/03/2017 Opening Balance of Cash-on- 3,51,30,942 2,57,74,321/- 8,57,122/- hand Add: 1.Cash received from sales 2.Cash received from debtors 3.Cash received from other activities (Description of other activity) 4.Cash withdrawn from 3,19,00,000/- 9,50,000/- 7,49,40,000/- banks 5.Loans received in cash - - - 6,70,30,942/- 2,67,24,321/- 7,57,97,122/- Less: 1.Cash paid for 4,11,24,960/- 47,72,304/- 5,07,53,412/- purchases/Expenses 2.Cash paid to Creditors 1,31,661/- 46,895/- 33,53,415/- 3.cash paid for other activites - - - 4.Cash deposited in banks - 2,10,48,000/- 5.Loans provided in cash - - - Closing balance of Cash on 2,57,74,321/- 8,57,122/- 2,16,90,295/- hand
(e) Details of cash deposits made during de-monetization period is following table along with certificate of bank for the same. Sr.No. Name of Bank and Date of Amount Description Remarks Account number deposit deposited of notes deposited A B C D E F
1 Oriental Bank of 03.12.2016 25,00,000/- As per Bank - commerce A/c Certificate 09231100002149 2 HDFC A/c 03.12.2016 25,00,000/- As per Bank - No.03798710000056 Certificate 3 HDFC A/c 03.12.2016 25,00,000/- As per Bank - No.03798470000046 Certificate 4. Oriental Bank of 05.12.2016 25,00,000/- As per bank - Commerce A/C Certificate 09231100002149 5. HDFC A/C 05.12.2016 25,00,000/- As per bank - No.03798470000046 Certificate 6. HDFC A/C No. 05.12.2016 25,00,000/- As per bank - 03798470000046 Certificate 7. Oriental Bank of 09.12.2016 5,48,000/- As per bank Commerce A/C Certificate 09231100002149 8. HDFC A/C 06.12.2016 20,00,000/- As per bank - No.0379871000056 Certificate 9. Oriental Bank of 09.12.2016 5,48,000/- As per bank - Commerce A/C Certificate 09231100002149 10 Oriental bank of 19.12.2016 10,00,000/- As per bank Commerce A/C Certificate 09231100002149 Certificate from bank regarding cash deposited during demonetization period is submitted herewith. (f) With respect to non-reporting of cash deposited during demonetization in ITR -6, we would like to state that, by mistake, we forget to report the same in ITR. However, the same has been reposted in Audit Report.
9.9 From the above it is revealed 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 material placed on record accepted the genuineness of the claim of the assessee.
9.10 Coming to issue of labour expenses we note that the AO vide notice u/s 142(1) dated 09-11-2019 required the assessee to furnished detail of expenses above Rs. 1 lakh which duly furnished by the assessee which includes detail of construction expenses of Rs. 9,12,24,940/- labour charges to subcontractor for Rs. 10.28 crore, labour construction cess etc. These details were supported by the sample vouchers, cash books bank books and TDS details. Therefore, it can be safely deduced that the AO carried out enquiry with regard to labour expenses and after application of mind on the material produced by the assessee, he accepted the genuineness of the expenses incurred. This fact can be verified from the notice issued under section 142(1) of the Act by the AO and submission in reply of the assessee against such notice. ii. Notice dated 09-11-2019:
Please provide certified copies of ledgers of all the direct and indirect expenditures of more than Rs.1,00,000/- in total along with supporting vouchers/bills/invoices. Please give justification of the major expenditures vis-à-vis business activities of the company ******************************************************************** Please provide cash book and bank books for the F.Y. 2014-15 and 2015-16. ii. Reply dated 28-11-2019 is placed at page 35 to 36 of paper book
14 Construction expenses 3,72,120/- Expenses for Dismentlation of existing structures of various sites.
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17 Labour charges paid to 10,28,75,222/- Labour charges are for qork sub done by the sub-contractor engaged at various sites for various types of labour activities carried out at sites. 18 Labour construction 48,84,957/- Labour Construction cess is cess deducted by Government department from RA Bills as per the terms and conditions of tenders. 19 Sub Contract Expenses 4,99,17,397/- Sub contract expenses are for the work done by the sub- contractor engaged at various sites for various types at activities carried out at sites.
9.11 It is also important to refer that the assessee has also furnished the vouchers in support of labour charges expenses which are placed on pages 43 to 126 of the paper book. From the above, it is transpired that there was necessary application of mind applied by the AO during the assessment proceedings. Likewise, there were also necessary verification of the details of labour expenses.
9.12 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 not invoked the explanation 2 of section 263 of the Act in the show cause notice dated 17 January 2022 about the same. Therefore, the opportunity with respect to the explanation 2 of section 263 of the Act was not afforded to the assessee. Thus, on this count the learned PCIT erred in taking the re-course of such provisions while deciding the issue against the assessee. Secondly, 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.
9.13 In view of the above and after considering the facts in totality, we hold that there is no error in the assessment framed by the AO under section 143(3) causing prejudice to the interest of revenue. Thus, the revisional order passed by the learned PCIT is not sustainable and therefore we quash the same. Hence the ground of appeal of the assessee is allowed.
In the result, the appeal filed by the assessee is allowed.
Order pronounced in the Court on 07/09/2022 at Ahmedabad.