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2016 (8) TMI 641 - ITAT BANGALORE

2016 (8) TMI 641 - ITAT BANGALORE - TMI - Revision u/s 263 - Held that:- It is not necessary for a CIT to specifically say that the order passed by the AO was erroneous and prejudicial to the interests of Revenue when such order was passed without application of mind. This is for the simple reason that an order passed without enquiry by itself makes such order erroneous and prejudicial to the interests of Revenue. It does not matter much that CIT did not specifically mention the AO’s order as er .....

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irected the AO to pass a fresh order after giving an opportunity to the assessee. Considering all these, we have no hesitation in upholding the order of CIT. - Disallowance as capital expenditure - Held that:- Disallowance made by the AO was for a reason that advances written off by the assessee were for purchasing capital assets. Similar issue had come up in the case of Khoday India Ltd, which was a sister concern of the assessee. The claim was allowed by the Tribunal on assessee’s appeal .....

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wering the questions of law in favour of the revenue. - Disallowance of expenditure incurred in an earlier year - Held that:- AO has listed the items of expenditure at page 3 of the assessment order. The dates of expenditure clearly show that all these pertained to an earlier year. Another contention taken by the assessee is that some of the amounts were shown twice. The amounts seen as repeating are ₹ 292/- paid to Ernakulam Sales Tax and ₹ 8,553/- paid at Jaipur as sales-tax. .....

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aim. As for the decision of coordinate bench in the case of Khoday Breweries Ltd for A. Y. 1998-99 relied on by the assessee, facts were different. Resultantly, ground.2 of the assessee is dismissed. - I.T.A No.1117/Bang/2010, I.T.A No.614/Bang/2011 - Dated:- 17-6-2016 - SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER For The Assessee : Shri. S. Sukumar, Advocate For The Revenue : Dr. Sibichen K. Mathew, CIT -III ORDER PER ABRAHAM P. GEORGE, ACCOUNTANT MEM .....

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mpugned assessment year declaring loss of ₹ 2,90,00,129/-. During the course of assessment proceedings, AO required the assessee to furnish details of expenditure. From such details, AO found that the expenditure claimed by the assessee included irrecoverable advance of ₹ 1,33,40,620/- for its distillery division and ₹ 51,17,440/- for stationary division. As per the AO, this expenditure could be divided into three categories namely one which was capital in nature, second which .....

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d assessment concluded accordingly. 03. Subsequently CIT issued a notice u/s.263 of the Act, to the assessee, citing a reason that assessee had received a sum ₹ 6.29 crores as compensation which was mentioned in Schedule 13 of its audited account statements, and had claimed it as capital receipt relying on the judgment of Hon ble Bombay High Court in the case of Bombay Burmah Trading Corporation Ltd. V. CIT [81 ITR 777]. As per the CIT, AO while completing the assessment had not applied hi .....

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he buildings to be built by M/s. Prestige Estates Projects Ltd, in the said property, by virtue of this agreement. Assessee pointed out that another agreement was entered by it on 27.10.2004 with M/s. Daatha Builders through which assessee agreed to purchase 27.5% share of M/s. Daatha Builders in the project to be built by M/s. Prestige Estates Projects Ltd, for a total consideration of ₹ 17,16,00,000/-. As per the assessee on the very same day a sum of ₹ 50 lakhs was paid by it as a .....

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above mentioned cancellation agreement looked suspicious since assessee had received huge sums in lieu of surrender of its rights for specific performance. As per the CIT by virtue of agreement dt.27.10.2004 that assessee had entered with M/s. Daatha Builders, what was paid by the assessee was only ₹ 50 lakhs out of the total agreed consideration of ₹ 17,16,00,000/- and the balance sum of ₹ 16,16,00,000/- remained payable to M/s. Daatha Builders to the assessee. According to h .....

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r a personal hearing. Aggrieved on the above order of CIT, assessee is in appeal before us. 04. Grounds taken by the assessee are reproduced hereunder : 05. It can be seen from the above grounds that the assessee has divided the grounds to two, one in respect of jurisdiction and the other in respect of merits. Ld. AR has filed two sets of submission. In the first set of submission filed on 07.06.2011 it is stated that the development agreement between M/s. Daatha Builders and M/s. Prestige Estat .....

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rial Co. Ltd, v. CIT [243 ITR 83] and CIT v. Max India Ltd, [295 ITR 282], Ld. AR submitted that CIT could not substitute a lawful view taken by the AO. As per the Ld. AR, CIT did not indicate how the facts in assessee s case were different from that of Hon ble Bombay High Court judgment in the case of Bombay Burmah Trading Corpn. Ltd, (supra). Ld. AR submitted that compensation received in breach of agreement for sale was in the nature of damages and would be capital receipt. Similarly accordin .....

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TR 35] (Raj) vii ) Travancore Rubber & Tea & Co. Ltd v. CIT [243 ITR 158] (SC) viii) CIT v. D. P. Sandu Bros. Chembur P. Ltd [273 ITR 1] (SC) ix) Syndicate Bank Ltd v. ACIT [(1985) 155 ITR 68] Further according to him there could be no capital gains since there was no transfer of any capital asset by virtue of agreement for sale. According to him no cost could be computed. When no cost could be computed there was no question of levy of capital gains. For this reliance was placed on judgm .....

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tors b. details of securities provided for secured loans c. evidence of adition to fixed assets d. details of expenditure above ₹ 1 lakh e. details of bad debts and irrecoverable for write off." As per the Ld. DR none of these were on the sum of ₹ 6.29 crores shown by the assessee in its note to accounts as capital receipts. AO had not asked anything on such huge amount claimed as exempt. Therefore according to him, CIT was justified in concluding that AO had not applied his min .....

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months. What the assessee had paid on the date of entering into agreement was ₹ 50 lakhs to M/s. Daatha Builders, whereas on cancellation of the agreement it received a huge amount of ₹ 6.29 crores. As for the reliance placed by the Ld. AR on the decision of S. Zoraster & Co., (supra) of Hon ble Rajasthan High Court, Ld. DR submitted that the concerned assessee there was a seller who had received compensation from the purchaser, where the agreement contained a specific condition .....

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Hon ble Apex Court in the case of Shapurji Broacha Mills Ltd v. CIT [78 ITR 68] would tilt the issue in favour of the Revenue. According to him compensation received for breach of an agreement for selling agency, was held to be taxable when the underlying agreement was found to be sham. Reliance was also placed on the judgment of Hon ble Apex Court in the case of Madhowji Dharamshi Manufacturing Co. Ltd v. CIT [78 ITR 62]. 08. Ad libitum reply of the Ld. AR was that for invoking Section 263 of t .....

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financial accounts. Further according to him, there was no mention either in the show-cause notice or in the order passed u/s.263 of the Act, as to how the order of the AO was erroneous. As per the Ld. AR, CIT had not given any finding at all. In his opinion, CIT was harbouring a suspicion that the agreements were sham. Mere suspicion would not convert an order otherwise correct to an erroneous one. Further as per the Ld. AR, audit report u/s.44AB of the Act, was filed along with the return and .....

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Court in the case of CIT v. Jain Construction Co. [257 CTR 336] and also that of Hon ble Bombay High Court in the case of Sterling Construction and Investments v. ACIT (Inv) [374 ITR 474]. 09. We have perused the materials and heard the rival contentions. We have also gone through the written submissions carefully. Assessee along with the return of income filed for the impugned assessment year had filed balance sheet, its schedules and tax audit return u/s.44AB of the Act. Schedules to the bala .....

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case of Bombay Burmah Trading Corporation Ltd v. CIT (1971) 81 ITR 777. The above note appears as item number h of Schedule 13. Notes prior to that ran into a number of pages. Question is whether the receipt of ₹ 6.29 crores by the assessee as capital receipt was in the mind of the AO during the course of assessment proceedings, has to be seen in the above perspective. As mentioned by us, what was before the AO was the audited final account statements with 13 schedules, in which the thirte .....

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been described by us at para two above. There were certain disallowances made by the AO during the course of assessment proceedings on claim of irrecoverable advance, based on the details filed by assessee. None of the details called for or submitted, related to the receipt of compensation of ₹ 629 lakhs by the assessee claimed as exempt. In our opinion, absence of enquiry is explicit. AO had not noted the comment of the assessee in the notes to accounts regarding the receipt of compensati .....

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did not make any enquiry with regard to the agreement entered by the assessee which resulted in receipt of ₹ 629 lakhs. Thus, in our opinion, there was absolutely no enquiry by the AO. Absence of enquiry definitely renders the order of AO erroneous. 10. Next question to be answered is whether the order was prejudicial to the interests of Revenue. In our opinion when an order is considered erroneous for a reason that there was no enquiry by the AO, the logical consequence is that it is pre .....

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jurisdiction u/s.263 of the Act unless it was shown that the order passed by the AO was both erroneous and prejudicial to the interests of Revenue. Reliance was placed by the concerned assessee in the said case on the very same judgments mentioned by the Ld. AR before us. Argument of the assessee in the said case was that CIT could not exercise the power of revision, unless prejudice was also caused, even when there was absence of proper enquiry. Question before the Hon ble jurisdictional High C .....

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own his awareness for the deductions as claimed by the assessee and had allowed the same and though not necessarily by indicating in the order and submits that the assessee had placed material justifying the claim before the assessing authority and in this view of the matter, when the assessing authority had consciously allowed the deductions as claimed under the relevant articles of the avoidance agreements with the two countries, it was definitely not open to the CIT, in any manner to interfer .....

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rned senior counsel appearing for the respondents-assessee, with reference to these decisions, is that the CIT can exercise jurisdiction under s. 263 of the Act only when the order is both erroneous and prejudicial to the interest of the Revenue; that it should be demonstrable that not only the orders passed by the lower authorities, which is sought to be revised, is erroneous, in the sense it is in contravention or at variance with any statutory provisions, but also that it should have resulted .....

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esulted in some loss of revenue, is a situation which cannot qualify for revision under s. 263 of the Act; that judicial opinion is to the effect that a mere alternative view being possible in respect of a particular statutory provision or a situation cannot be brought within the scope of the phrase 'prejudicial to the interests of the Revenue', as is indicated in the above-referred judgments and therefore submits that the order of the CIT neither demonstrates that the assessing authorit .....

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not open to the CIT to go into the details of lack of jurisdiction when the assessing authority was allowing deduction as claimed by the assessee in respect of the tax deducted in a foreign country with reference to the relevant articles in the DTAA and if the assessing authority had opined that the assessee was entitled to claim such deduction, the CIT cannot opine to the contrary to say that the assessee was either not entitled to some part of it or was not entitled to the entire amount, more .....

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jurisdiction of CIT under s. 263 of the Act and in particular having noticed the decisions which have been referred to and relied upon by the assessee and observed as under : "Before we advert to the submissions made by the learned counsel appearing for the parties, it would be wise to recall the parameters and principles laid down by the Courts which govern the exercise of power by the CIT under the provisions of s. 263 of the Act. (i) The power is supervisory in nature, whereby the CIT c .....

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ct assumption of facts or is in breach of the principles of natural justice or is passed without application of mind, that is, is stereo-typed, in as much as, the AO accepts what is stated in the return of the assessee without making any enquiry called for in the circumstances of the case, that is, proceeds with "undue haste". [See Gee Vee Enterprises vs. Addl. CIT 1975 CTR (Del) 61: (1975) 99 ITR 375(Del)]. (iv) The expression "prejudicial to the interests of the Revenue" wh .....

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by the AO which has resulted in a loss. [See CIT vs. Max India Ltd. (2007) 213 CTR (SC) 266: (2007) 295 ITR 282(SC) ]. (vi) There is no requirement of issuance of a notice before commencing proceedings under s. 263 of the Act. What is required is adherence to the principles of natural justice by granting to the assessee an opportunity of being heard before passing an order under s. 263. [See CIT vs. Electro House (1971) 82 ITR 824(SC)]. (vii) If the AO acts in accordance with law his order canno .....

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ld show that tax which was lawfully eligible was not imposed. [See CIT vs. Gabrial India Ltd. (supra)]." 14. Sri Suryanarayana submits that even on facts, the present case is almost on par with the case as was examined both by the Bombay High Court and the Delhi High Court in the cases of Gabrial India Ltd. (supra) and Ashish Rajpal (supra) respectively, and therefore, submits that the view taken therein should commend for our acceptance and should be applied and the appeals of the Revenue .....

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of exercise of revisional jurisdiction by the CIT is not one which is conditioned by any prior requirement; that it is sufficient if he is of the view or he considers that the subject order requires to be revised within the scope of s. 263 of the Act. 17. Insofar as the facts of the present case are concerned, it is not at all in dispute that certain deductions in the nature of tax relief had been claimed by the assessee for the two assessment years in question and with reference to DTAA in exi .....

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dy noticed the statutory provisions of s. 263 of the Act. Sec. 263 is a section which enables the CIT to have a look at the orders or proceedings of the lower authorities and to effect a correction, if so needed, particularly if the order or proceeding is erroneous and prejudicial to the interest of the Revenue. This provision occurs in a taxing statute, the object of which is to raise revenue for the State, and s. 263 is an enabling provision conferring jurisdiction on the CIT to revise the ord .....

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to ensure that leakage to the Revenue is plugged and some tax due to the State not reaching the coffers of the State is prevented by exercise of revisional jurisdiction of the CIT. 19. The observation as contained in the case of Electro House (supra), extracted above, and as has been particularly pointed out by Sri Indrakumar in the case of Malabar Industrial Co. Ltd. vs. CIT (supra), though this decision was relied upon on behalf of the assessee, particularly to the passage/observation of the S .....

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der passed by the ITO, which might set a bad trend or pattern for similar assessments, which on a broad reckoning, the CIT might think to be prejudicial to the interests of Revenue administration,' In our view, this interpretation is too narrow to merit acceptance. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is encrusted to the Revenue. If due to an erroneous order of the ITO, the Revenue is losing tax lawfully payable by a pers .....

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ew with which the CIT does not agree, it cannot he treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the AO accepting the same as such will be erroneous and prejudicial to the interests of the Revenue'Rampyari Devi Saraogi vs. CIT (1968) 67 ITR 84(SC) and in Smt. Tar .....

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llant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the conclusion that the order of the ITO was erroneous is irresistible. We are. therefore, of the opinion that the High Court has rightly held that the exercise of the jurisdiction by the CIT under s. 263(1) was justified. The second contention has .....

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order of the High Court that the findings recorded by the Tribunal that the appellant stopped agricultural operation in November, 1982, and the receipt under consideration did not relate to any agricultural operation carried on by the appellant, were not questioned before it. Though, we do not agree with the High Court that the said amount was paid for breach of contract as indeed it was paid in modification/relaxation of the terms of the contract, we hold that the High Court is justified in co .....

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y the assessee to the effect that the authority taking the view that the assessee was entitled for deduction in full, but the CIT doubting that, that in itself does not become a situation of the order being erroneous, the question is not one of the order being erroneous directly with reference to the specific statutory provision but could be on a procedural aspect also. 21. In the present case, while there is no doubt that the assessee is entitled to claim deduction in terms of the arts. 23(3)(a .....

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e is satisfied, on the strength of the authority of the Supreme Court not only in the case of Electro House (supra) and more so on the basis of the observations and law as declared in the case of Malabar Industrial Co. Ltd. (supra), we are fully satisfied that a situation where a deduction of the present nature is allowed or in the sense deducted from out of the tax liability of the assessee without indicating the basis, can definitely be construed as an order both erroneous and prejudicial, as .....

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ity not disclosing the basis. 22. To test this proposition, if an order which is explicit is passed by the assessing authority and indicating that the assessee is entitled to a particular extent of relief, but if it is with reference to relevant articles of the DTAA and if it is not either a proper computation or not fully in consonance with the same and if it has resulted in a situation of granting a greater relief than the assessee is otherwise entitled to under these agreements and if the CIT .....

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not an acceptable submission. 23. Though learned counsel for the assessee have placed strong reliance on two judgments of the Bombay High Court and the Delhi High Court in the cases of Gabriel India Ltd. (supra) and Ashish Rajpal (supra) respectively and the Delhi High Court, in fact, has made reference to the decision of the Supreme Court in the case of Max India Ltd. (supra), with great respect, we are unable to apply the ratio of these two decisions to the present circumstance and we are qui .....

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, in fact, could not have been contended as detrimental to the interest of the assessee, as it was always open to the assessee to justify the claim in terms of the DTAA. In a situation of this nature, we arc also of the opinion that it was not a case which warranted interference by the Tribunal, more so for setting aside the order of the CIT and for ensuring that the order passed by the assessing authority was left in tact. 25. One should bear in mind that a relief which is required to be given .....

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inciples, particularly questions of jurisdiction and by interpreting a statuary provision, to limit or curtail the scope and operation of the provision even when there is no need for it. 26. We are also not in a position to accept the submission that the materials had been placed before the assessing authority and therefore there should be a conclusion that the authority has applied his mind to the same and there was no question of the CIT interfering by taking a different view etc. 27. Assessin .....

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rned counsel submit that this is the legal position on authority, we are afraid that to accept a submission of this nature would be to give a free hand to the assessing authority, just to pass orders without reasoning and to spell out reasons only in a situation where the finding is to be against the assessee or any claim put forth by the assessee is denied. 28. We are of the clear opinion that there cannot be any dichotomy of this nature as every conclusion and finding by the assessing authorit .....

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s an order not merely erroneous but also prejudicial to the interest of the Revenue and therefore while the CIT was justified in exercising the jurisdiction under s. 263 of the Act, the Tribunal was definitely not justified in interfering with this order of the CIT in its appellate jurisdiction. 29. Therefore, we answer the question posed for our answer in the negative and against the assessee. Both appeal are allowed. Parties to bear their respective cost. 11. A reading of the above judgment of .....

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neous and prejudicial, when he had opened his mind and made observations which are pregnant enough to show such a state of affairs. When an assessing officer who is duty bound under law to carry out certain enquiries on a return filed by an assessee, does not do it in a manner a prudent person would have done, if placed in such a authority, this in our opinion, would definitely make the order erroneous and prejudicial to the interests of Revenue. The CIT had only set aside the assessment and dir .....

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,750/-, made as capital expenditure. Ld. AR submitted that the claim was on expenditure incurred by the assessee on writing off advances given for purchase of various assets. As per the Ld. AR, the supplies in pursuance to such advances which were given in the earlier years, were not forthcoming. According to him this was a pure business loss for the assessee, and had to be allowed. 14. Per contra, Ld. DR submitted that assessee in its ground was relying on a decision of the Tribunal in the case .....

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a reason that advances written off by the assessee were for purchasing capital assets. Similar issue had come up in the case of Khoday India Ltd, which was a sister concern of the assessee. The claim was allowed by the Tribunal on assessee s appeal and the matter was carried to the Hon ble jurisdictional High Court by the Revenue. Question no.1, framed before the Hon ble jurisdictional High Court in the said case was as under : Whether the advance amount of ₹ 7,97,645/- paid by the Assess .....

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een considered with regard to the advances made for procuring capital items. There is no dispute with regard to the nature of the expenditure as such, and the counsel for the respondent-assessee also submits that it is in the nature of the capital expenditure, but since the said capital assets is not in existence, a deduction has to be given under Section 37 of the Act. On a perusal of the said Section, we find that it is expressly mentioned that, any expenditure in the nature of capital expendi .....

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ng of the same, in respect of capi tal expendi ture cannot be read into the said section. In fact, in the said decision, while answering question No.4, the Calcutta High Court was concerned with the question as to whether the advances made for the project expenditure in petro-chemical project was for a business purpose or not and while so answering held that the deletion in disallowance was not correct. 7. We find that since Section 37 does not incorporate such a condition and it expressly exclu .....

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