2018 (5) TMI 1698 - HC - Income Tax

Court overturns Tax Commissioner's order, remands case for review. Appellate Commissioner's decision declared void, providing relief.

NITIN BABUBHAI ROHIT OR HIS SUCCESSOR IN OFFICE Versus ASHOK BHAVANBHAI PATEL

The court set aside the Commissioner of Income Tax's order dated 07.07.2016 and remanded the revision petition for fresh disposal. Additionally, the court ... Revision u/s 263 - authority of the Commissioner of Income Tax to entertain and dispose of the revision petition - unexplained cash credit - special audit demand - Held that:- The issues pertained to opening cash balance , Unsecured loans with respect to which, the assessee had not satisfactorily discharged the onus of establishing identity, capacity of the creditors or the genuineness of the transactions, as also clarification regarding sum found in the suspense account. If this was the opinion of the Commissioner, he could not have simply ignored such materials on record on the ground that addition of a sum of ₹ 20 crores being a serious matter, the same should be examined again. It is not the quantum of additions but the justification thereof which would be germane for deciding to exercise revisional powers. Special audit can be called for only with the prior approval of the concerned authority. It is certainly not an option or a choice which an assessee can exercise or insist upon. The Commissioner of Income Tax therefore gave undue importance to the assessee requesting for such special audit. In fact, he referred to such offer of the assessee as having 'thankfully requested'. We wonder what would the Commissioner have done had the assessee not made such request. Be that as it may, both the grounds for interfering with the order of assessment and to remand the proceedings for fresh assessment before the assessing authority after obtaining special audit report are unsustainable. Issues Involved:1. Maintainability of the petition filed by the Assessing Officer.2. Authority of the Commissioner of Income Tax to entertain and dispose of the revision petition.3. Merits of the order passed by the Commissioner of Income Tax.4. Validity of the manually filed appeal by the assessee and subsequent actions by the Commissioner (Appeals).Detailed Analysis:1. Maintainability of the Petition Filed by the Assessing Officer:The petitioner, an Income Tax Officer, challenged the revisional order passed by the Commissioner of Income Tax. The respondent argued that the Assessing Officer, being subordinate to the Commissioner, could not independently challenge the revisional order. The court noted that the petition was filed after obtaining administrative approval from the Principal Chief Commissioner, as evidenced by a letter dated 19.12.2017. Thus, the petition was not an act of the Assessing Officer's own volition but a decision by the department, making the petition maintainable.2. Authority of the Commissioner of Income Tax to Entertain and Dispose of the Revision Petition:The court examined the statutory provisions under Section 264 of the Income Tax Act, which prescribes the revisional jurisdiction of the Commissioner of Income Tax. Subsection (4) of Section 264 limits the jurisdiction of the Commissioner in certain situations, such as when an appeal is pending or has not been waived by the assessee. The court found that the assessee had filed a manual appeal on 15.04.2016, but the relevant rule required electronic filing by 15.06.2016. Since no electronic appeal was filed, the Commissioner was justified in proceeding with the revision petition on 07.07.2016. The Commissioner (Appeals) later treated the manually filed appeal as defective and nonest, aligning with the revised rules.3. Merits of the Order Passed by the Commissioner of Income Tax:The Commissioner of Income Tax remanded the assessment proceedings for a fresh assessment after a special audit under Section 142(2A) of the Act, citing the serious nature of the additions and the assessee's request for a special audit. The court found this reasoning flawed. The Commissioner acknowledged that the assessee failed to respond to multiple notices and left several issues unexplained, including an opening cash balance of Rs. 1.81 crores, unsecured loans of Rs. 4.42 crores, and Rs. 13.66 crores in a suspense account. The court held that the quantum of additions should not dictate the exercise of revisional powers. Furthermore, the special audit under Section 142(2A) is not an option the assessee can insist upon but a power vested in the Assessing Officer with prior approval. The court concluded that the Commissioner erred in giving undue importance to the assessee's request for a special audit and in remanding the proceedings based on unsustainable grounds.4. Validity of the Manually Filed Appeal by the Assessee and Subsequent Actions by the Commissioner (Appeals):The court noted that the Commissioner (Appeals) initially informed the assessee that the manually filed appeal would be treated as nonest if not filed electronically within seven days. The assessee responded by stating a preference to pursue the revision petition, which was already disposed of. Despite this, the Commissioner (Appeals) proceeded to dismiss the manually filed appeal on 21.09.2017. The court found this approach erroneous, as the Commissioner (Appeals) had no power to dismiss an appeal that was defective and not pursued by the assessee. The court declared the order dated 21.09.2017 by the Commissioner (Appeals) unsustainable and inoperative.Conclusion:The court set aside the impugned order dated 07.07.2016 passed by the Commissioner of Income Tax and remanded the revision petition for fresh disposal in accordance with the law. The court also declared the order dated 21.09.2017 passed by the Appellate Commissioner unsustainable and inoperative, ensuring the assessee is not left without any remedy. The petition was disposed of accordingly.