M/S SWASTIK ESTATE, RAIPUR,RAIPUR vs. PRINCIPAL COMMISSIONER OF INCOME TAX, RAIPUR-1, RAIPUR
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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
Per Arun Khodpia, AM :
The captioned appeal is filed by the assessee against the order passed by the Ld. Pr. Commissioner of Income Tax, National Faceless Appeal Centre (NFAC), Delhi, dated 20.03.2023 u/s 263 of the Income Tax Act, 1961 ( for short ‘the Act’) for AY 2018-19. The grounds of the appeal raised by the assessee are as under: “1. On the facts & circumstances of the case in in law assessment order made u/s. 143(3) dt.30.03.2021 is neither erroneous nor prejudicial to the interest of the revenue; it is not a case of lack of enquiry by the ld. AO; and hence, order passed u/s.263 dt. 20.03.2023 is liable to be quashed. 2. The appellant craves leave to add, urge, alter, modify or withdraw any grounds before or at the time of hearing.”
2 ITA No. 178/RPR/2023
Brief facts of the case are that the assessee firm during the year under was engaged in the business of real estate development of housing projects, land development, commercial projects, etc. The assessee firm had filed its return of income for the A.Y.2018-19 on 29.08.2018 declaring an income of Rs. Nil. Assessment was thereafter completed by the A.O vide his order passed u/s. 143(3A) and 143(3B) of the Act dated 30.03.2021 assessing the total income of the assessee firm at Rs. Nil.
After culmination of the assessment proceedings, the Pr. CIT called for the records of the assessee firm. On an examination of records, perusal of submissions and the Form No 26AS, it was observed by the Pr. CIT that assessee firm has paid Rs.12,00,00,000/- to Geekay Colonizers and Builders Limited after deduction of tax of Rs. 12,00,000/- on 15.02.2018 whereas this TDS amount was deposited on 29.09.2018 after filing of ITR on 29-08-18 which apparently violates the provisions of Section 40(a) (ia) which lay down that thirty percent of the sum payable, i.e. Rs 12,00,00,000/- shall only be allowed as deduction, as, although such TDS has indeed been done in the same previous year, but has been paid in the Government account after the due date of filing of return. Here, it is worthwhile to mention that the notice for the hearing by a mistake mentioned the Section 43B in place of Section 40(a)(ia). However, the assessee has filed no reply to the notice at all.
3 ITA No. 178/RPR/2023 4. Considering the aforesaid facts which have emanated from the case records, it was observed by the Pr. CIT that the order passed u/s 143(3) r.w.s 143(3A) & 143(3B) of the Income Tax Act, 1961 vide order dated 30.03.2021 is erroneous and prejudicial to the interests of revenue. The Pr. CIT was of the view that since the AO while passing the assessment order by conducting proper enquiries and examination of accounts, therefore, the assessment order passed u/s 143(3) r.w.s 143(3A) & 143(3B) of the Act is erroneous in so far as it is prejudicial to the interest of the revenue in the light of section 263 of the Act. Accordingly, the Pr. CIT set-aside the assessment order to the file of the A.O with a direction to pass a fresh re- assessment order in a speaking manner after making all necessary enquiries and after providing due and adequate opportunity of being heard to the assessee and after considering all the submissions made and counter reply filed by the assessee in a fair and judicious manner.
The assessee being aggrieved with the order of the Pr. CIT dated 20.03.2023 has carried the same before us.
At the inception of hearing itself, it was noticed that when the proceedings u/s.263 of the Act were initiated by the Ld. Pr. CIT, the assessee was show caused on 01.02.2023 incorporating the reasons for invoking the provisions of Section 263 of the Act in assuming power under the said section. However, as per Para 5, Page 2 of the order passed u/s.263 of the Act by the Pr. CIT, it is observed that, no compliance has been made by the assessee, therefore, the Pr. CIT proceeded with the
4 ITA No. 178/RPR/2023 matter on the basis of material available on record and thereby, concluded that the assessment order passed by the A.O u/s 143(3) r.w.s 143(3A) & 143(3B) of the Act dated 30.03.2021 is erroneous in so far as it is prejudicial to the interest of the revenue in the light of section 263 of the Act and set aside the assessment order with a direction to the A.O to pass a fresh re- assessment order in a speaking manner after making all necessary enquiries and after providing due and adequate opportunity of being heard to the assessee and after considering all the submissions made and counter reply filed by the assessee in a fair and judicious manner.
In view of the aforesaid observations and looking to the conduct of the assessee during revisional proceedings, wherein the issue raised were not responded to by the assessee and Ld PCIT has no occasion to deal such conditions of the assessee, therefore, in all fairness the matter needs to be revisited qua the submissions / explanations of assessee. Since, there was no adverse inference drawn by the Ld PCIT but had granted reasonable / adequate opportunity of being heard to the assessee by setting aside the order of the A.O for re-adjudication, therefore, apparently, there is no prejudice caused to the assessee, much less, the assessee is at liberty to submit its reply and explanation before the A.O. in back ground of such facts and circumstances, we are of the considered opinion that there was no infirmity in the order of the Pr. CIT, thus, are of the view that the same does not call for any interference.
5 ITA No. 178/RPR/2023 8. As we have upheld the view taken by the Pr. CIT, therefore, we refrain from adverting to and therein dealing with the merits of the case, which thus, are left open.
In the result, appeal of the assessee is dismissed in terms of our aforesaid observations.
Order pronounced in the court on 27/09/2023. Sd/-
Sd/- Sd/- (RAVISH SOOD) (ARUN KHODPIA) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER रायपुर/Raipur; �दनांक Dated 27/09/2023 SB आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- 2. ��यथ� / The Respondent- आयकर आयु�(अपील) / The CIT(A), 3. आयकर आयु�त / CIT 4. 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER, // True Copy // (Assistant Registrar) आयकर अपील�य अ�धकरण, रायपुर/ITAT, Raipur
