2013 (9) TMI 269 - AT - Income Tax

Tribunal upholds Commissioner's order

Intas Pharmaceuticals Ltd. Versus DCIT Central Circle-2(1)

The Tribunal upheld the Commissioner of Income-tax's order under Section 263, finding the Assessing Officer's failure to conduct proper inquiries resulted ... Revision u/s 263 - Correctness of application of section 263 by CIT – AO allowed set off B/F losses and unabsorbed depreciation - Held that:- Nothing has been brought on record to show that any inquiry has been made by the AO in the course of assessment proceedings on this account and hence, it has to be accepted that such set off was allowed by the AO in the absence of any supporting material and without making any inquiry and therefore, the jurisdiction exercised by ld. CIT u/s. 263 of the Act is justified - Decided against the assessee. Revision u/s 263 - AO did not refer the case of TPO where International transaction reported by the assessee in Form 3CEF is more than Rs.5 crore Held that:- oard Instruction No. 3 dated 20-05-2003 issued by CBDT u/s. 119 of the Act as per which it was decided that wherever the value of international transaction exceeds to Rs. 5 crore, the case should be taken up for scrutiny and reference u/s.92CA be made to the TPO - the Assessing Officer was duty-bound to refer the matter to the TPO for determination of Arm's Length Price and since, this was not done by the AO, it has to be accepted that the assessment order in both years is erroneous as well as prejudicial to the interest of Revenue. - Decided against the assessee. Issues Involved:1. Validity of the order passed under Section 263 of the Income-tax Act, 1961.2. Whether the assessment order was erroneous and prejudicial to the interest of the Revenue.3. Proper inquiry by the Assessing Officer regarding set-off of brought forward losses and unabsorbed depreciation.4. Determination of the effective date of amalgamation.5. Reference to Transfer Pricing Officer (TPO) for determination of Arm's Length Price (ALP) of international transactions.Detailed Analysis:1. Validity of the Order Passed Under Section 263:The assessee challenged the order passed by the Commissioner of Income-tax (CIT) under Section 263 of the Income-tax Act, 1961, arguing that it was bad in law and should be quashed. The CIT had invoked Section 263 to revise the assessment orders for the assessment years (AY) 2006-07, 2007-08, and 2008-09, claiming that the original assessment orders were erroneous and prejudicial to the interest of the Revenue.2. Erroneous and Prejudicial Assessment Order:The CIT observed that the Assessing Officer (AO) allowed the set-off of brought forward business losses and unabsorbed depreciation of M/s Dolphin Laboratories Limited (DLL) without proper inquiry. The AO had determined the total assessed income at Rs. Nil, allowing set-off of brought forward business loss amounting to Rs. 43,49,59,470/-. The CIT argued that the AO's failure to make proper inquiries rendered the assessment order erroneous and prejudicial to the interest of the Revenue, citing the Supreme Court judgment in Malabar Industrial Co. Ltd. v. CIT (2000) 243 ITR 83 (SC).3. Inquiry Regarding Set-off of Losses and Depreciation:The CIT directed the AO to verify several points, including the scheme of rehabilitation, the cut-off date, the appointed date, and the effective date of the amalgamation, as well as the quantification of unabsorbed losses and depreciation. The CIT emphasized that the AO had not verified whether the unabsorbed losses or depreciation was quantified by the AO in the hands of DLL, nor had the AO verified the applicability of Section 41(1) regarding the taxability of remission/waivers of liabilities.4. Effective Date of Amalgamation:The assessee contended that the appointed date (01-01-2006) should be considered as the date of amalgamation, citing the judgment of the jurisdictional High Court in the case of Khurana Engg. Ltd. as Successor of M.S. Khurana v. Dy. CIT. The CIT, however, directed the AO to examine whether the cut-off date or the appointed date should be considered and to decide the year of allowability of brought forward losses and unabsorbed depreciation.5. Reference to Transfer Pricing Officer (TPO):For AYs 2007-08 and 2008-09, the CIT noted that the AO did not refer the matter to the TPO for determination of the Arm's Length Price (ALP) of international transactions, despite the assessee filing Form No. 3CEB. The CIT held that the AO was duty-bound to refer the international transactions to the TPO as per Section 92CA and CBDT's Instruction No. 3 dated 20-05-2003, which mandates such reference if the value of international transactions exceeds Rs. 5 crore. The CIT directed the AO to redo the assessment de novo after referring the matter to the TPO.Conclusion:The Tribunal upheld the CIT's order under Section 263, agreeing that the AO had failed to make proper inquiries and that the assessment orders were erroneous and prejudicial to the interest of the Revenue. The Tribunal dismissed the appeals of the assessee, affirming the CIT's directions for reassessment and verification of the relevant points. The Tribunal also supported the CIT's direction to refer the international transactions to the TPO for determination of ALP, rejecting the assessee's contention that the AO could only determine the ALP and not redo the assessment on other aspects.