SHRI ABHIMANYU GUPTA,PATIALA vs. PR. CIT, PATIALA

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISIN BENCH ‘A’, CHANDIGARH

BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER

ITA No. 771/Chd/2017 Assessment Year: 2012-13

Shri Abhimanyu Gupta Vs. Pr. CIT # 62-B, Model Town Patiala Patiala

PAN No. ADVPG4335J

(Appellant) (Respondent)

Assessee By : Shri Tej Mohan Singh Revenue By : Dr. Gulshan Raj

Date of hearing : 09/01/2018 Date of Pronouncement : 09/04/2018

ORDER PER DIVA SINGH, J.M.

The present appeal has been filed by the assessee assailing the correctness of the order dated 29/03/2017 of Pr.CIT, Patiala pertaining to 2012 – 13 assessment year on the following grounds:

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submitted that when the show cause notice issued by the Pr.CIT is considered in toto would be evident that similar reply had been given to the Pr.CIT namely that the issues have been completely enquired into and considered. In the said circumstances it was submitted the Pr.CIT ought to have pointed out the error which was noted by him which was prejudicial to the interests of the revenue which has not been done. Accordingly the decision of the Pr.CIT in revising the assessment order passed it was submitted is contrary to law and facts. Carrying us through the detailed show cause notice which has been reproduced in the impugned order itself it was submitted that a perusal of the same would show that the Pr.CIT is aware that the issues have been enquired into. The reply of the assessee is also reproduced in the impugned order itself which again would demonstrate that the assessee has vehemently submitted that all these issues which have been referred to have already been enquired into by the AO. Carrying us the detailed reply before the assessing officer and the Pr.CIT it was his submission that in the facts as available on record the impugned order may be quashed. Reliance was placed upon the decision of the Supreme Court in the case of Malabar Industries Co. Ltd. Vs. CIT [243 ITR 831. Reliance was also placed upon the decision of Hon’ble Bombay High Court in case of CIT Vs. Fine Jewellery (India) Ltd. [372 ITR 303]. Attention was also invited to the decision of the Hon’ble Delhi High Court in the case of DIT Vs. Jyoti Foundation 357 ITR 388 for the proposition that in case the Reviewing Authority is of the view that there is inadequate enquiry then the Reviewing Authority must make enquiry and show that the assessment order is erroneous. Reviewing Authority it was submitted has no authority to remand. The scope of revision it was submitted was subject to the Pr.CIT demonstrating that the enquiry was inadequate. The Pr.CIT it was submitted was bound to give his own finding which has not been done. Similar proposition of law it was submitted has been laid down by the Delhi High Court in yet another case i.e; in the case of CIT Vs. Sunbeam Auto Ltd. 332 ITR 167. Accordingly it was his submission that the assessment order passed is neither erroneous nor prejudicial to the interests of the revenue.

2.1 Inviting attention to the paper book filed on facts it was submitted that the reply of the assessee before the assessing officer dated 31/10/2014 is placed at pages 1 to 2. The submissions were supported by the copies of confirmed

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accounts of sundry creditors which are also placed at pages 3 to 66 of the paper book and were made available to the AO. Inviting attention to the paper book pages 67,68 it was submitted that this is the copy of the reply dated 16/03/2015 filed by the assessee also before the assessing officer which was alongwith the following Annexure:

a. Details of immovable property acquired during the year. b. Details of stock purchase & consumed during the year. c. Calculation of capital gain on sale of share.

2.2 Inviting attention to pages 69 to 79, 80 to 87 and 82 to 122 of the Paper Book it was submitted that these details of immovable property acquired during the year; including details of stock purchased and consumed during the year; calculation of capital gain arising on account of sale were all made available. Attention was invited to the specific documents to demonstrate that these documents which are available on record have been before the assessing officer. As an illustration it was submitted that the documents at page 88 is the calculation of capital gain on sale of shares paper book page number hundred it was submitted is form No. 23 which is filed before the ROC and is a copy of Registration of resolutions passed indicating “buy back of shares”. Inviting attention to paper book page 109 it was submitted that the calculation of the capital gain on sale of that is made available to the assessing officer supported by the sale deed and the receipts etc. All these documents it was submitted have been made available to the Pr.CIT also. Inviting attention to pages 123 to 124 of the said paper book it was submitted that this contains the copy of the reply dated 16/03/2015 also filed before the assessing officer in the 143(3) proceedings and paper book pages 125 to 147 which are also the supporting evidences are the details of stock; inviting attention to pages 148 of the paper book and its reply at pages 151 to 159 dt, 27/03/2017 which has been rejected by the Pr. CIT without addressing the reply resulted in the passing of the impugned order. it was submitted that all these were available before the Pr.CIT who has not faulted the documents or the evidences in any manner and has proceeded to reconsider the same facts without pointing to any error. It was submitted that apart from the reliance placed upon the decisions cited earlier and the facts argued reliance would also being placed upon the decision of the Hon’ble Delhi High Court in the case of Pr. CIT Vs. Delhi Airport Metro Express

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Pvt. Ltd. copy of this decision dated 05/09/2017 in ITA 705/2017(Del) it was submitted is placed in case law paper book pages 1 to 5. Reliance was also been placed upon the decision of the Delhi Bench of the ITAT in the case of M/s Amira Pure Foods Pvt. Ltd. Vs. Pr. CIT dt. 29/11/2017 copy placed at paper book pages 6 to 42 of the paper book. Reliance was also placed in para 11 & 12 of the said decisions in the background of the claim that facts were identical. Paragraph 10 of the said decisions was specifically referred to. Attention was also invited to the specific finding in para 28 so as to highlight that it is not the case of the Pr.CIT that the relevant books of accounts alongwith supporting facts and evidences were not perused by the assessing officer thus in the circumstances it could not be held by him that it was a case of no enquiry. Reliance was also placed on the decision relied upon in the case of Mumbai bench of the ITAT dated 6/5/2016 in the case of Narayan Tatu Rane Vs. CIT (2016) 70 taxman.com 2 2 7 (Mumbai – tribunal) was relied upon copy of the said decision it was submitted is placed at pages 43 to 53 of the paper book on the basis of these facts and decisions it was his submission that the impugned order deserves to be quashed.

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around the specific show cause notice issued by the Pr. CIT for ready reference the same is extracted from the impugned order:

“While examining your assessment record for the assessment year 2012-13, it has been noticed that the order u/s 143(3) of IT Act, 1961 is erroneous in so far as it is prejudicial to the interests of the revenue on the following grounds :-

(i) From the perusal of the assessment record, it has been noticed that the AO has called for information u/s 133(6) in respect of the sundry creditors. The AO has noticed that information in respect of some of the sundry creditors has not been received and the envelopes received undelivered because of lack of sufficient addresses. Instead of going further into the matter, the AO made the addition by increasing GP rate from 4.66% to 5%. It has been noticed that the AO has not gone on the basic reason i.e. to examine/verify the large sundry creditors. The AO has not properly verified and no independent enquiry has been made. From the perusal of the assessment record, it appears that in most of the cases, copies of accounts have been furnished by you yourself. The AO made the addition by increasing the GP rate that too without rejecting the books of accounts. (ii) From the perusal of the assessment record, it has been noticed that the you sold two properties amounting to Rs. 18 lacs and Rs.74.50 lacs and purchased a house for Rs.1.84 crores, however, no independent enquiry appears to have been made about these transactions.. (iii) From the perusal of the assessment record, it has been noticed that the you sold 57050 unlisted shares amounting to Rs. 22,82,000/- showing long term capital gain of Rs. 13,97,948/- in a buy back scheme of company namely M/s Shivam Telecom. The genuineness of this transaction was required to be verified because you had substantial interest in the said company and which is a non listed company. Subsequently you claimed exemption u/s 54F(1) on purchase of residential property amounting to Rs. 1,84,68,500/-. The AO has not verified the exemption claimed u/s 54F as to whether all the formalities were completed on transfer of capital assets i.e. shares which not to be charged to tax in case of investment in residential house.

(iv) From the perusal of the information on record with regard to the household expenses, it has been noticed that you have not debited any expenses from your account. All the expenses of the family consisting of 5 members have been met by your father and your wife. The AO has not verified the copy of bank statement of your father and also has not verified the genuineness of income of your wife. It had to be examined whether your wife is actually working as BAMS doctor or not. (v) From the perusal of the account of Mukesh Sharma HUF it has been noticed that you have paid in cash to Mukesh Sharma HUF on 20.11.2012 exceeding Rs.20,000/- (17000 + 11750). Further perusal of the a/c of Raj Kumar Ram, it has been noticed that you have paid in cash to him exceeding Rs.20,000/- on 29.12.2011 (15000 + 20000 + 1200).

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4.1 The case of the assessee has been that the submissions advanced before the Pr. CIT demonstrates that it was argued that these issues had been enquired into by the assessing officer. Accordingly for ready reference the relevant submissions are extracted from the impugned order hereunder:

"Vide notice u/s 263(1) dt. 21.03.2017, your good self has called upon the assessee to submit his objection if any against your proposal to revise the assessment order dt. 27.03.2015 passed by ACIT, Circle, Patiala in the case of assessee. The reasons for proposed action are also given in the aforesaid notice. At the outset, we respectfully submit that all the observations in the notice are incorrect, not supported by any material on record, wholly conjectural and result of failure to correctly appreciate the things in their proper perspective. However, we are extremely thankful for the respect shown to the principles of natural justice and granting us this opportunity to explain. The undersigned has been authorized to submit as under:- 1.1 The assessee is running business of Civil Contractor in proprietor capacity under the trade name of M/s A.S. Enterprises since 2007. The main area of business is construction of commercial buildings and trading in firewood. 1.2 I n the course of assessment proceedings, the assessee produced his books of account and all other information’s /documents as called for by the Assessing Officer from time to time. The assessee has not only explained queries raised by the Assessing Officer, but has also substantiated them with necessary documentary evidence.

1.3 After verifying the informations submitted by the assessee, the Assessing Officer completed the assessment under section 143(3) of the Act vide order dated March 27, 2015

1.4 Further submitted that the queries raised in your show cause notice had been looked into by the Assessing officer while framing the assessment order and the Assessing officer was fully satisfied with the record produced before him and contention put forth before him by the assessee with regard to these specific issues. 2. With regard to various issues raised by your good self we submit our explanation as under:- i) As regards the issue of verification of Sundry creditors, your kind attention is invited to the fact that the Assessing officer vide his notice dt. 14.07.2014 u/s 142(1) specifically asked the assessee to file confirmed copy of accounts of creditors with balance exceeding Rs. 50,000/- The assessee obtained confirmed copy of accounts from five creditors containing their names and addresses and PAN nos. and filed the same with A.O. vide letter dt. 31.10.2014 under page 1-64 annexed therein. Vide reply, dt. 24.03.2015 in response to order sheet entry dt. 23/03/2015, the assessee further submitted as under :- “Kindly note that assessee submitted confirmations of majority of sundry creditors constituting substantial part of total outstanding sundry creditors as on

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31.03.2012. The confirmations of selected few could not be filed as the assessee has no business dealing with them during the current year i.e. F.Y. 2014-15 and their accounts are squared up. However, assessee has duly filed their copy of accounts for the subject year and next A.Y. i.e. 2013-14 as per his books of account. It needs to be appreciated that almost all the payments are through banking channel. The assessee also provided addresses of^ these parties to your good self for necessary action if required. As regard no compliance of notice u/s 133(6) of the IT Act 1961 by few parties, it is submitted that assessee can not be penalized for the conduct of third party over which it has no control. " Kindly permit us to submit that as per records notices issued u/s 133(6) were duly complied with except one relating to Sh. Saurabh Bassi Nawanshahar. We are filing herewith confirmed copy of account of said Sh. Saurabh Bassi as per page 1 enclosed. In case you desire, the concerned person can be produced before your goodself for verification. As regard your observation regarding invoking of sec 145(3), It is humbly submitted that there is no case for invoking sec 145(3)as A.O. has categorically stated in his order that requisite information/details as called for from time to time have been furnished which have been examined and placed on record. It is undisputed that the assessee is subject to tax audit u/s 44A B of the Income Tax Act, 1961. Vide order sheet entry dt. 31.10.2014, A.O asked assessee to justify valuation of closing stock and WIP with documentary evidence. The assessee duly furnished list of closing stock (qty. & amount) as on 1 31.03.2012 along with documentary evidence to substantiate the value of closing stock vide letter dt. 16.03.2015 under page 11-20. The assessee also furnished stock records in respect of materials purchased and consumed vide letter dt. 16.03.2015 under page 1-12 annexed therein. Was also placed on record vide letter of even date. No defect has been pointed out in the books of account of the assessee by assessing officer. We are enclosing herewith relevant details/ information for your kind reference as per page no 2-35. ii) & iii) As regards sale and purchase of properties and claim of deduction u/s 54F, vide order sheet entry dt. 10.10.2014, A.O asked the assessee to justify claim u/s 54F with documentary evidence. In response to the same assessee vide letter dt. 24.03.2015 submitted as under :- " The assessee had capital gains from sale of property as well as on account of buyback of unlisted equity shares during the year. The same has duly reflected in the computation of income. Further documentary evidence in support of sale/purchase of property and buy back of shares is furnished as per page 23-58. " For your ready reference we are enclosing herewith calculation sheets of capital gains and allowable deduction u/s 54F. Detail of purchase of unlisted equity shares in the past and buyback of shares in the subject year by company is enclosed. Also returns filed with Registrar of Companies, Chandigarh evidencing transfer of unlisted shares is enclosed. We are enclosing herewith relevant details/information for your kind reference as per page no. 36-80. iv) The house hold expenses are self explanatory as the assessee as well his family members are having fairly large income. The ITRs of the family members are available in assessment file. Even otherwise estimated addition of Rs.878990/- in CP covers the inadequacy of house hold exp. If any detail of family and H.H. exp. enclosed as per page no. 80A. v) The case of Mukesh Sharma HUF pointed by your goodself does not belong to subject year as the date of payment mentioned in your notice is 20.11.2012 which

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relates to A.Y. 2013-14. As regards payments made to Sh. Raj Kumar exceeding Rs.20000/- in cash on 29.12.2011, it is submitted that payments were made on far away sight on different dates but the vouchers were entered in cash book on date \ inadvertently. Copy of ledger a/cs and payment vouchers are enclosed as per page no. 81-87. 3. It is vehemently argued the Assessing Officer has completed assessment by conducting appropriate enquiries and applying his mind. Hence the assessment order cannot be held erroneous and prejudicial to the interest of Revenue. "

"4.4 Reliance is placed on the decisions:- a) Hon'ble jurisdictional High Court in the case of Hari Iron and Trading Co. v CIT(2003) 131 Taxman 535 (P & H). b) MJs VedParkash Contractors, Vs. The CIT, Patiala ITAT Chd. ITA No. 573/Chd/2015 ITA No. 573/Chd/2015 Assessment Year: 2010-11.

c) CIT v. Valliammal [1998] 230 ITR 695 (Mad.). An order cannot be said to be erroneous on the ground that verification of accounts was needed. d) Narain Singla v.Pr CIT 62 Taxmann.com 255(CHD Trib). e) CITv. Sunbeam Auto Ltd [2011] 332 ITR 167 (Del). f ) CIT v. Mehrotra Brothers 270ITR 157(MP). "

4.2 The relevant finding arrived at by the sensible CIT on which heavy reliance was placed upon by the CITDR which is assailed by the assessee in the present proceedings by the Ld. AR is also extracted hereunder for the sake of completeness:

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"For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the principal Commissioner or Commissioner,- a) The order is passed without making inquiries or verification which should have been made; b) The order is passed allowing any relief without inquiring into the claim; c) The order has not been made in accordance with any order, direction or instruction issued by the Board under section 119;or d) The order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of assessee or any other person." In View of the aforesaid facts, the order of the AO is erroneous and prejudicial to the interest of the revenue as well. 5. I, therefore, hold the assessment order dated 27.03.2015 for the A.Y. 2012-l3 in the case of the assessee is erroneous in as much as prejudicial to the interest of the revenue and set aside the order to the file of the AO for passing a fresh order in accordance with law in respect of the issue discussed above regarding verification of genuineness of sundry creditors and also raised in show cause notice u/s 263(1) of the Act, after giving sufficient opportunity of hearing to the assessee.

4.3 Accordingly in the light of these facts and submissions we find that in the peculiar facts and circumstances of the present case the Pr. CIT has failed to meet the statutory requirements of either pointing out the error or how in the absence of error being pointed out the order passed by the assessing officer can be said to be prejudicial to the interests of the revenue. We have already extracted from the record the show cause notice issued by the Pr. CIT in the earlier part of this order. On a reading therefrom it is seen that five specific reasons were set out by Pr. CIT which were confronted to the assessee to justify why on the specific grounds addressed the assessment order under section 143(3) should not be considered to be erroneous as well as prejudicial to the interests of the revenue. We have gone through the explanation of the assessee offered before the Pr. CIT vide its reply dated 27/03/2017. A perusal of which shows that the assessee vehemently took the stand that each and every aspect had been enquired into by the assessing officer before the passing of the order. It is seen that various order sheet entries were referred to show that queries were raised. None of this has been upset by the Pr. CIT in the order passed. The assessee as per its reply addressed to the Pr. CIT has also referred to replies made before the assessing officer in response to these queries to show that the queries raised in the assessment proceedings were responded to by making books of accounts available and providing all information/documents as called

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for by the assessing officer from time to time were made available and only after verifying the same the assessment order was passed. We note that the impugned order fails to address these detailed submissions which have been extracted in the impugned order itself. It is seen that in the reply of the assessee before the Pr. CIT it has been argued that on the specific queries raised in the show cause notice the assessing officer in the course of the assessment proceedings vide notice dated 14/07/2014 required the assessee to file confirmed copy of accounts of creditors with balance sheets exceeding Rs. 50,000. The assessee as per the reply extracted in the impugned order itself is found to have stated that the assessee obtained the confirmed copy of accounts from the creditors containing their names, full addresses, PAN numbers etc and the specific information was made available to the assessing officer by letter dated 31/10/2014. Copy of the same was placed before the Pr. CIT alongwith Annexure running into 64 pages. We further note that vide reply dated 24/03/2015 in response to order sheet dated 23/03/2015 of the AO the assessee has stated before the Pr. CIT that confirmed copies of majority of sundry creditors were made available and only in few instances the assessee could not make those available as the assessee in the year under consideration had no business dealings with them as the accounts had been squared up. In support of the said assertion the copy of the accounts for the financial year had been filed. It was further submitted that because few of the parties did not respond to notices issued under section 133 (6) the assessee may not be penalised for the conduct of the parties. We further note that the assessee relied upon the reply to order sheet entry dated 31/10/2014 to justify the valuation of closing stock and WIP with documentary evidence and submitted that consequently no defects in assessee’s books of accounts were found by the assessing officer. It is further seen that qua the issues raised in the show cause notice in (ii) and (iii) the assessee relied upon the replies to the queries raised by the assessing officer vide order sheet entry dated 10/10/2014 stating that the assessee had capital gains from sale of properties as well as on account of buyback of unlisted equity shares reflected in the computation of income supported by documentary evidence made available to the AO which was also filed before the Pr. CIT at pages 23 to 58 calculation sheets of capital gains and allowable claim of deduction under section 54F made before the assessing

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officer was also filed before the PCI T alongwith evidence in the form of returns etc. filed with the Registrar of Companies evidencing transfer of unlisted shares in the specific firm. We note that the evidences filed have not been upset nor any further enquiry to upset them was carried out by the PCI T. Addressing the issue raised in (iv) by the Pr. CIT it is seen as per submissions extracted in the order itself that the ITRs of the family members available in the assessment file was relied upon. The estimated addition of Rs. 8,78,990/- in the assessment order it was submitted would more than adequately take care of inadequacy if any of the household expenses. Qua the payments of Rs. 20,000/- allegedly made for payment to Mukesh Sharma it was submitted that it pertains to 2013-14 assessment year and the payments made to Rajkumar totalling Rs. 20,000/- it was submitted was made on different dates at a faraway site. The assessee it is seen is in the construction business. On going through the impugned order we find that the Ld. Pr. CI T has failed to upset the submissions extracted in the order itself and has mechanically drawn the conclusions which are under challenge in the present proceedings. Although the relevant extract has already been extracted in the earlier part of this order it would still not be out of place to extract the conclusions drawn on facts by the the Ld. Commissioner who it is seen has made the following mechanical discussion on facts:

4.4 In the facts of the present case we find that the Pr. CIT has failed to point out the error committed by the assessing officer let alone such an error which can be considered to be prejudicial to the interests of the Revenue. The law does not permit the authority the exercise of revisionary powers to initiate fishing

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and roving enquiries. The assessing officer in the facts of the present case we note has passed an order after conducting detailed enquiries on all the issues the Pr. CIT has flagged various issues and on going through the record we note that he has failed to give any finding as to how and in what manner the order of the assessing officer on the various issues noted by him can be said to be erroneous let alone prejudicial to the interests of the Revenue. We note that no enquiry has been made by the Pr. CIT at his own instance and he has merely directed the assessing officer to pass an order in accordance with law. The law envisages that first the Ld. Pr.CIT is to point out how the order can be said to be erroneous without such an exercise the direction to pass the order in accordance with law becomes meaningless. The responsibility to do so cannot be shunned or abrogated by the said authority whimsically. The law requires that the order passed by the Pr. CIT should be a speaking order pointing out the error as in the absence of the same it is an arbitrary exercise which cannot be countenanced. We find support from the decision of the Hon’ble Delhi High Court in the case of DCIT versus Delhi Airport Metro Express private apart from various other decisions cited by the parties. The Court in categoric terms has held that the law envisages before the revisionary authority exercises jurisdiction under section 263 that the Pr. CIT should proceed by carrying out some minimum enquiries to show that the conclusion of the assessing officer is erroneous and prejudicial to the interests of the Revenue. Even in the circumstances where the Pr. CIT is of the view that the assessing officer did not undertake any enquiry even then it becomes incumbent upon the Pr. CIT to conduct such an Inquiry and in cases enquiry has been done then it is necessary to demonstrate that the error which the authority seeks to address is set out in the order to show how the error can be said to be prejudicial to the interests of the Revenue. In the facts of the present case we find that the Ld. Pr. CIT has failed to address the replies of the assessee even after extracting them in the order and has passed a bald order without bringing out any error whatsoever let alone an error which can be said to be prejudicial to the interests of the revenue. On going through the Explanation 2 to section 263 of the act which has been inserted w.e.f. 01/06/2015 we concur with the conclusions drawn by the coordinate bench in the case of Naryan Tatu Rane cited supra wherein it has been held that explanation cannot be said to have overridden the law as

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interpreted by various High courts and the High courts have consistently held that before reaching the conclusion that the order of the AO is erroneous and prejudicial to the interests of the revenue the Commissioner himself has to undertake some enquiry to establish that the assessment order is erroneous and prejudicial to the interests of the revenue. In the facts of the present case we find that no such exercise has been done.

Order pronounced in the Open Court.

Sd/- Sd/- (ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 09/04/2018 AG Copy to: The Appellant, The Respondent, The CIT, The CIT(A), The DR