2019 (1) TMI 341 - AT - Income Tax

Revision u/s 263 - CIT-A set aside the assessment order passed by AO u/s 147 and directed the AO to initiate fresh assessment proceedings and carry out necessary verification - bogus purchases - receipt of information from DGIT(Inv.) Kolkata, that the assessee had taken accommodation entry from an entry operator of Mumbai, who had provided bogus entries for purchases - exercise of revisionary powers u/s 263 by CIT-A - finding of the Pr. CIT is that AO could have made proper verification in the absence of relevant vital information as that the material placed by the assessee before the Assessing Officer was not sufficient to come to a conclusion that only 3% of the bogus purchases are to be considered for the additions - no proper enquiry/verification conducted by the Assessing Officer. Held that - In our view this conclusion of the ld. Pr. CIT, is factually incorrect. The quantitative details have not been found fault with. None of the facts stated, have been controverted. The reply of the assessee extracted above demonstrated that all necessary documents and evidences were furnished before the Assessing Officer. AO had also issued notice u/s 133(6) of the Act, to the sellers at the addresses given by the DGIT-(Inv.), Kolkata. He had received replies from these persons confirming the transactions. He only doubted the mode of delivery of these diamonds. The assessee furnished sufficient evidence to prove the mode of delivery. On these facts, the Assessing Officer chose not to bring to tax 97% of the value of the purchases to tax as bogus purchases. The issue is covered in favour of the assessee by the decision of the Hon ble Gujarat High Court in the case Tejua Rohitkumar Kapadia 2017 (10) TMI 729 - GUJARAT HIGH COURT . Even otherwise, when the issue is pending before the ld. CIT(A)-3, Kolkata, the ld. Pr. CIT, does not have the jurisdiction to exercise his powers u/s 263 of the Act, in view of explanation 1 (c) of Section 263 - revisionary powers cannot be exercise under these facts and circumstances of this case. The Assessing Officer in this case considered all the evidences and had taken a possible view under the law. - Decided in favour of assessee

Summary

Issues Involved:
1. Legitimacy of the revisionary order passed u/s 263 of the Income Tax Act, 1961.
2. Verification of alleged bogus purchases by the assessee.
3. Jurisdiction of the Principal Commissioner of Income Tax (Pr. CIT) when the matter is pending before the CIT(A).
4. Adequacy of the Assessing Officer's (AO) enquiry and verification process.

Detailed Analysis:

1. Legitimacy of the Revisionary Order Passed u/s 263 of the Income Tax Act, 1961:
The assessee challenged the revisionary order passed by the Pr. CIT u/s 263 of the Act, which set aside the assessment order and directed the AO to initiate fresh assessment proceedings. The Pr. CIT believed that the AO's assessment was erroneous and prejudicial to the revenue because it did not properly verify the genuineness of the purchases. The Tribunal, however, found that the AO had conducted a thorough verification process, including issuing notices u/s 133(6) to the sellers, who confirmed the transactions. The Tribunal concluded that the Pr. CIT's order was factually incorrect and quashed it, citing that the AO had taken a possible view under the law.

2. Verification of Alleged Bogus Purchases by the Assessee:
The AO initiated reassessment proceedings based on information that the assessee had taken accommodation entries from an entry operator providing bogus purchase entries. During the reassessment, the assessee provided comprehensive details, including invoices, payments through banking channels, stock registers, and flight details showing the transportation of diamonds. The AO, after verification, disallowed only 3% of the purchases, a decision the assessee contested. The Tribunal noted that the AO had conducted proper verification and found no evidence of money being recycled back to the assessee, thus supporting the AO's decision to disallow only a small percentage of the purchases.

3. Jurisdiction of the Principal Commissioner of Income Tax (Pr. CIT) When the Matter is Pending Before the CIT(A):
The Tribunal highlighted that the issue was already pending before the CIT(A)-3, Kolkata, and thus the Pr. CIT did not have jurisdiction to exercise powers u/s 263 of the Act. This was in line with explanation 1(c) of Section 263 of the Act, which restricts the Pr. CIT's jurisdiction when an appeal is pending.

4. Adequacy of the Assessing Officer's (AO) Enquiry and Verification Process:
The Pr. CIT argued that the AO's enquiry was inadequate and that the AO had not properly verified the purchases. However, the Tribunal found that the AO had indeed conducted a detailed enquiry, including verification of invoices, payments, stock registers, and transportation details. The Tribunal also referred to the Hon'ble Delhi High Court's judgment in the case of Income-tax Officer v. D.G. Housing Projects Ltd., which emphasized that the Commissioner must provide a clear finding that the AO's order is erroneous and prejudicial to the revenue. In this case, the Tribunal concluded that the AO had conducted a sufficient enquiry and that the Pr. CIT's order was not justified.

Conclusion:
The Tribunal quashed the revisionary orders of the Pr. CIT and allowed the appeals of the assessee. The Tribunal held that the AO had conducted a proper verification process and taken a possible view under the law. The Tribunal also noted that the Pr. CIT did not have jurisdiction to exercise powers u/s 263 when the matter was pending before the CIT(A). The Tribunal's decision was based on a thorough examination of the facts, evidences, and relevant legal precedents.