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2015 (11) TMI 272 - ITAT DELHI

2015 (11) TMI 272 - ITAT DELHI - TMI - Revision u/s 263 - addition on account of unsecured loans and sundry creditors - Held that:- We had called for the assessment records and the Ld.DR confirms that all the details in respect of the loans along with confirmations necessary for the purposes of verification, details regarding the sundry creditors etc., were available before the Ld.AO at the time of assessment. From the questionnaire raised by the ld.AO it further appears that specific queries ha .....

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ils in respect of the issues raised in the notice issued by the ld.CIT u/s.263 of the Act. We therefore reject the submission of the Revenue that the order of the Ld.AO is erroneous or prejudicial to the interest of the Revenue or have been passed without application of mind only because in the assessment order the ld.AO has not made elaborate discussion in that regard. It is evident that the ld.CIT has set aside the order of the ld.AO only on the ground that the view taken by the ld.AO was not .....

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ed:- 30-9-2015 - SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For The Appellant : Sh. Deepak Kapoor, Adv. For The Respondent : Sh. Ravi Jain, CIT DR ORDER PER BEENA PILLAI, JUDICIAL MEMBER: This is an appeal filed by the assessee against the order of the Commissioner of Income Tax, Meerut u/s 263 of the Income Tax Act, 1961 dated 25.03.2013 for A.Y. 2008-09 on the following revised grounds of appeal, filed on 28/05/2015, which are as below: 1. BECAUSE on the fac .....

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Act is wrong and bad in law as much as the ld. CIT did not give reasonable opportunity to the assessee to represent the case and completed the proceedings by passing impugned order. 3. BECAUSE it is a settled legal position that if the ground on which order is passed by the CIT is not specified in the notice u/s 263, such an order cannot be sustained. The impugned order is passed mainly for; (i) Non -Maintenance of stock register (ii) Low net profit (iii) Rejection of books of account u/s 145(3 .....

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tors and Unsecured Loans are fully explainable. The ld. CIT cannot travel beyond the show cause notice. 4. BECAUSE the impugned order contains contradictory and incorrect facts which clearly shows that the impugned order is passed mechanically without any application of mind and the same deserves to be quashed. 5. BECAUSE on facts and in law and on grounds taken and basis adopted, the addition of ₹ 48,23,008/- u/s 68 on account of entire unsecured loan as per the personal set of the assess .....

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fully discharged the onus as required u/s 68 of the Act. The ld. CIT has made addition u/s 68 for total loans outstanding as on 31.03.2008 which includes loan of ₹ 37,02,605/- taken by the assessee in earlier years. The addition of ₹ 48,23,008/- is therefore, illegal, unjustified and deserves to be deleted in full. 6. BECAUSE on the facts and in law and on grounds taken and basis adopted, the addition of ₹ 35,93,265/- u/s 68 on account of entire unsecured loan as per the busin .....

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ring the year and had fully discharged the onus as required u/s 68 of the Act. The ld. CIT has made addition u/s 68 for total loans outstanding as on 31.03.2008 which includes loan of ₹ 21,91,271/- taken by the assessee in earlier years. The addition of ₹ 35,93,265/- is therefore illegal, unjustified and deserves to be deleted in full. 7. BECAUSE on the facts and in law and on grounds taken and basis adopted, the addition of ₹ 5,90,39,946/- on account of sundry creditors is tot .....

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basis adopted, the addition of ₹ 5,90,39,946/- is totally wrong, unjustified and illegal. The same deserves to be deleted in too. 8. That the assessee craves leave to add, amend, alter or withdraw any of the ground of appeal on or before the date of hearing. 2. Brief facts of the case are that the assessee is the proprietor of M/s Arihant Prakashan. The business of the assessee is publication of books for competitive examinations. The assessee has been filing Income Tax Return regularly f .....

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amined by the ld. AO. Further during the assessment proceedings, the assessee duly filed the confirmation copy of account of sundry creditors and also filed all the necessary documents in support of unsecured loan raised by the assessee during the relevant previous year. The ld. AO raised queries in respect of sundry creditors, unsecured loan and increase in the capital by the assessee. The assessment order was passed u/s 143(3) and the ld. AO observed as under: The assessee company is engaged i .....

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paid service tax liability. 5. Subsequently the ld. CIT, Meerut initiated proceedings u/s 263 of the Income Tax Act vide notice dated 12/02/2013. By the said notice, the ld. CIT raised certain queries. The ld. CIT on examination of assessment records had opined that the assessment order has been passed without proper enquiry in view of the following points: a) From the perusal of balance sheet and its annexure, it appears that during the year the assessee has introduced new capital of ₹ 20 .....

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d. ₹ 53,696/- & ₹ 2,62,424/- respectively on different dates, but TDS has not been deducted thereon. Therefore, the same amount should be disallowed u/s 40(a)(ia). d) During the year, the assessee has paid freight to M/s Delhi M.P. Road Carrier to ₹ 55,971/- but TDS has not been deducted on the same amount. Therefore, the same shall be disallowed u/s 40(a)(ia). 6. The ld. CIT ultimately concluded the grounds of addition in the following manner: S.No. Point/ground as per Not .....

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unity to the assessee whatsoever b The assessee has filed personal balance sheet for the year ending 31.03.2008 in which capital shown ₹ 1,03,64,190/-. The assessee has also filed balance sheet for the year ending on 31.03.2007 in which capital was ₹ 76,56,659/-. Thus, capital has been increased to ₹ 27,07,531/- the source has not been verified by the AO. Vide para 6 of the impugned order the ld. CIT directed AO to verify. After verification, the ld. AO made no addition vide or .....

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essee has paid freight to M/s Delhi M.P. Road Carrier to ₹ 55,971/- but TDS has not been deducted on the same amount. Therefore, the same shall be disallowed u/s 40(a)(ia). Vide para 7 of the Impugned order the ld. CIT directed the AO to verify. After verification, the ld. AO made no addition vide order u/s 143(3)/263 dated 24.02.2014. e. Sundry Creditors and Unsecured Loans have not been confirmed by the AO by issue of notice u/s 133(6). AO simply accepted the confirmation filed by the as .....

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enue for the purpose of sec.263. 8. Accordingly, the ld. AO passed an order on 21/02/2014 u/s 263 r.w.s. 143(3) of the Act giving effect to the order of the Ld. CIT. As per the directions of the ld. CIT, the AO verified the personal balance sheet for the year ending 31/03/2008 of the appellant in which capital was shown amounting to ₹ 1,03,64,190/-. He also verified the balance sheet for the year ending 31/03/2007 in which a capital amounting to ₹ 76,56,659/- was shown. The AO on ver .....

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8377; 4823008/- ii Addition on account of unsecured loans ₹ 3593265/- iii) Addition on account of sundry creditors ₹ 59039946/- Total Income ₹ 70718809/- Or ₹ 70718810/- 9. The Ld.AO however made addition in respect of the loan liability amounting to ₹ 48.23 lacs, unsecured loan amounting to ₹ 38.23 lacs and sundry creditors amounting to ₹ 5.9crs, as per the order passed by the Ld. CIT u/s.263 of the Act. 10. Aggrieved by the order of the ld. CIT passed .....

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sessment order has been passed without proper enquiry on the points raised in paragraph 6 above. 12. The Ld. AR submitted that in respect of addition of loan liability amounting to ₹ 48.23 lacs, unsecured loan amounting to ₹ 38.23 lacs and sundry creditors amounting to ₹ 5.9crs, as per the order passed by the Ld. CIT u/s.263 of the Act is bad in law in as much as the assessment order passed u/s.143(3), dated 10.12.2010 was not erroneous and prejudicial to the interest of the Re .....

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has made only those additions which has been made by the Ld.CIT vide order dated 25.03.2013. 14. The Ld. AR strenuously contended that the ld.CIT rejected the books of accounts at the assessee u/s 145(3) of the Act without affording due opportunity of hearing for the assessee. It is contended by the ld.AR that no show cause was issued to the assessee in this respect. The ld.AR submitted that ld.AO had accepted the books of accounts. 15. The Ld. DR supports the orders of the authorities below. 1 .....

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e of capital (has not been verified) by the AO. b) Sundry Creditors and Unsecured Loans have not been confirmed by the AO by issue of notice u/s 133(6). AO simply accepted the confirmation filed by the assessee. 16. During the year under consideration, the capital of the assessee in the books of M/s. Arihant Prakashan increased from ₹ 64,65,601.07/- to ₹ 98,00584.05/-. The same is verifiable from the audited balance sheet. It is very much evident that the assessee has introduced capi .....

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d at the time of assessment. It is further noticed that the ld. CIT has excerpted wrong figures from the submissions made by the assessee. 18. It is observed by us that the Ld.CIT did not provided opportunity of being heard to the assessee, which is paramount and mandatory requirement of the Act, prior to invoking the provision of Sec. 145(3). The CIT rejected books of accounts by pointing out that the business results could not be ascertained or verified in the absence stock register and other .....

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we are inclined to hold that the Ld.CIT rejected books of accounts of the assessee in a unjustified manner is not only against the scheme of the Act but also violative to the principles of natural justice. On careful consideration, we note that the CIT invoked section 145(3) with following observation and conclusion, The regular books of account, as such are not properly maintained, provisions of section 145(3) of the I.T.Act, 1961 are thus invoked rejecting the same since accounts are not prop .....

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s stipulated u/s 263 of the Act because the CIT proceeded to issue notice by pointing out five issues as reproduced hereinabove. However we notice in the impugned order passed u/s 263 of the Act, the CIT directed the ld.AO to make inquiry not only on four points but also enhanced the scope of inquiry for estimation of net profit at the of the assessee which were not mentioned in the notice u/s 263 of the Act. On perusal of the order passed u/s.263, we further observed a lot of factual mistakes, .....

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in which cap was 76,56,659/- ii) Personal set Balance Sheets on page 58-59 which were filed both during assessment proceedings and proceedings u/s 263 2. Para 5 page 6 of Order • Details of unsecured loan year 2007-08. • This table is wrong • Most of the observations relate to documentary support etc. for opening balance in accounts of lenders. • Correct table on page 58 • In each of the account starting from Akash Jain wrong facts have been observed by the ld. CIT. &bul .....

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is 947660/-…. Facts are totally wrong. See para 83-86 : Loan of ₹ 4 lac received from Payal. ₹ 3 lac was taken and repaid. 5. Para 8 page 10 of order: Despite repeated requests being given to furnish and produce the books of accounts, no books of accounts were produced At page 11 para 3 of the Impugned order: The ld. CIT observes the books of the assessee had been thoroughly verified during the course of the proceedings u/s 263 6. Para 8 page 10 of impugned order: Neither dur .....

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rnover of ₹ 20,39,25,524 on which it has declared NP of ₹ 33,40,720/- Page 454 of PB filed in appeal: The turnover is ₹ 17.05 cores Last year Net Profit ₹ 21.72 lac Current Year Net Profit ₹ 33.40 lac 8. Para 8 page 11 of order • observations regarding stock register, lower NP etc. • Rejection of books u/s 145(3) • no such query regarding stock, lower NP in notice u/s 263 • no show cause for rejection of books • the AO accepted books of acco .....

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all the details in respect of the loans along with confirmations necessary for the purposes of verification, details regarding the sundry creditors etc., were available before the Ld.AO at the time of assessment. From the questionnaire raised by the ld.AO it further appears that specific queries have been raised by the Ld.AO in respect of loan liability, unsecured loans and sundry creditors and the assessee has filed all the details as sought for by the ld.AO. The ld.AO has verified the same at .....

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s, and (b) It is prejudicial to the interests of the Revenue. If one of them is absent - if the order of the ITO is erroneous, but is not prejudicial to the Revenue or if it is not erroneous, but is prejudicial to the Revenue - recourse cannot be had to section 263(1) of the Act. It was further held that the provisions of section 263 cannot be invoked to correct each and every type of mistake or error committed by the AO. (b) CIT Vs Max India Ltd [2007] 295 ITR 282 (SC) : 213 CTR 266 (SC) It was .....

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opment Credit Bank Ltd. [2010] 323 ITR 206 (Bom.) In this case, the CIT passed an order under section 263(1) of the Act, setting aside the assessment order passed by the AO and directing de novo enquiry on two issues. The Tribunal noted that all the details had been considered by the AO while passing the assessment order under section 143(3) of the Act. The Tribunal held that the CIT was not justified in exercising the suo motu power of revision under section 263. On further appeal, the High Cou .....

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thout conducting an enquiry was erroneous, since an enquiry was specifically held with reference to which a disclosure of details was called for by the AO and furnished by the asseseee. The Tribunal was, therefore, justified in holding that recourse to the powers under section 263 was not warranted in the facts and circumstances of the case. (e) CIT Vs. Design and Automation Engineers (Bombay) P. Ltd. [2010] 323 ITR 632 (Bom.). Pursuant to filing the return, the assessee, engaged in the business .....

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n under section 80HHC(3) of the Act. The Commissioner held that while allowing deduction under section 80HHC of the Act, the Assessing Officer had not followed the provision of section 80HHC(3) of the Act, the deduction allowed was higher than what was allowable and recalculated the deduction under section 80HHC of the Act. On appeal, the Tribunal set aside the order passed by the Commissioner holding that the view taken by the Assessing Officer was a possible view and therefore, it could not be .....

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. The Tribunal was right in holding that the view taken by the Assessing Officer was a possible view and that the condition precedent for invoking jurisdiction under section 263 by the Commissioner did not exist. The Tribunal was justified in upsetting the order passed by the Commissioner under section 263 of the Act. (f) CIT Vs. Smt.Minalben S. Parikh [1995] 215 ITR 81 (Guj.) It was held in this case that two conditions are required to be satisfied before the CIT can exercise powers under secti .....

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he order of the AO was prejudicial to the interests of the Revenue. The Tribunal was right in coming to the conclusion that if the order of the CIT was allowed to stand, it would result in double taxation which was contrary to the scheme of the Act and was not the purpose of exercise of powers under section 263 of the Act. Therefore, the Tribunal was right in law in setting aside the order of the CIT, under section 263 of the Act. (g) CIT Vs. Arvind Jewellers [2003] 259 ITR 502 (Guj) : [2002] 12 .....

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ot agree with the conclusion reached by the ITO. Section 263 did not empower him to take action on these facts to arrive at the conclusion that the order passed by the ITO was erroneous and prejudicial to the interests of the Revenue. Since the material was there on record and said material was considered by the ITO and a particular view was taken, the mere fact that different view could be taken, should not be the basis for an action under section 263 and it could not be held to be justified. I .....

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O, during the course of the assessment proceedings and hence it had to be accepted that the AO had applied his mind on all these issues. It was further held that even if such enquiry was inadequate in the opinion of the CIT, this did not give power to the CIT to pass order under section 263, merely because he had a different opinion on the matter. It was, accordingly, held that order of the CIT under section 263 was not sustainable. (i) Jamnadas T. Mehta Vs. ITO [2002] 257 ITR (AT) 90 (Pune) (TM .....

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order in exercise of the supervisory power, but it is to be invoked and employed only for setting right distortions and prejudices to the revenue, which is a unique conception, which is to be understood in the context of and in the interests of the Revenue administration. It was also held that where two views are possible and the AO has taken one view, with which the CIT does not agree, it cannot be treated as an erroneous order, prejudicial to the interests of the Revenue, unless the view take .....

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l to the interest of the Revenue or have been passed without application of mind only because in the assessment order the ld.AO has not made elaborate discussion in that regard. It is evident that the ld.CIT has set aside the order of the ld.AO only on the ground that the view taken by the ld.AO was not agreeable to him. In our considered opinion, it cannot be said that the ld.AO has not applied his mind at the time of assessment. The view taken by the ld.AO was a possible view and that the cond .....

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nable the Commissioner to exercise the power of revision under this sub-section, viz., (i) the order should be erroneous; and (ii) by virtue of the order being erroneous prejudice must have been caused to the interests of the Revenue. 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 certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order .....

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tes 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 higher figure 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. This is because the Income-tax Officer has exercised the quasi-judicial power vested in .....

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