2018 (11) TMI 784 - AT - Income Tax

Assessment order revised without proper opportunity for assessee; ITAT emphasizes fair process

The ITAT set aside the Principal CIT's order, finding that the A.O. had conducted adequate inquiries as directed and that the assessee was not given ... Revision u/s 263 - denial of natural justice - no sufficient opportunity was granted to the assessee as it can be seen that the notice invoking provisions of section 263 was issued on 18.2.2016 and the impugned order was passed on 14.3.2016 - Held that:- After considering the totality of the facts and considering the fact that as per provisions of section 263 of the Act, order of the A.O. can be revised by the Ld. Principal CIT, but the same provision mandates that such order cannot be passed without providing opportunity to the assessee. In the present case, we are of the view that sufficient opportunity is not granted to the assessee for representing and explaining the facts of the case. We therefore, set aside the impugned order and restore the issue to the file of the Principal CIT to decide the case afresh after providing sufficient opportunity to the assessee - Appeal of the assessee allowed for statistical purposes. Issues Involved:1. Whether the assessment order dated 31.03.2014 passed u/s 143(3)/254 was erroneous and prejudicial to the interest of revenue.2. Whether the Assessing Officer (A.O.) conducted adequate inquiries as directed by the ITAT.3. Whether the Principal Commissioner of Income Tax (Pr. CIT) provided sufficient opportunity to the assessee before revising the order.Issue-wise Detailed Analysis:1. Erroneous and Prejudicial to the Interest of Revenue:The Principal CIT revised the assessment order on the basis that it was erroneous and prejudicial to the interest of revenue. The original assessment disallowed the claim of deduction u/s 80IB(10) of the Income Tax Act, 1961, which was later allowed by the A.O. after the matter was remanded by the ITAT. The Principal CIT contended that the A.O. allowed the deduction without conducting necessary inquiries. The assessee argued that the A.O. had all relevant materials, including a letter from Bhopal Municipal Corporation confirming the completion of the project, and hence, the order was neither erroneous nor prejudicial to the revenue.2. Adequacy of Inquiries Conducted by the A.O.:The ITAT had directed the A.O. to make full inquiries regarding the infrastructure facilities developed by the assessee. The A.O. issued notices u/s 142(1) and 143(2), and the assessee provided all necessary documents, including a completion certificate from Bhopal Municipal Corporation. The A.O. verified these documents and allowed the deduction. The Principal CIT, however, argued that the A.O. did not make sufficient inquiries to ascertain the genuineness of the completion certificate. The assessee countered that the A.O. had conducted adequate inquiries and that the Principal CIT's desire for inquiries to be conducted in a certain manner does not justify invoking section 263.3. Sufficient Opportunity to the Assessee:The Principal CIT issued a show-cause notice on 18.02.2016 and passed the order on 14.03.2016. The assessee argued that this did not provide sufficient opportunity for representation. The ITAT observed that the order was passed based on written submissions and that sufficient opportunity was not granted to the assessee. According to section 263, an order cannot be revised without providing an opportunity to the assessee. Therefore, the ITAT set aside the Principal CIT's order and restored the issue for a fresh decision after providing sufficient opportunity to the assessee.Conclusion:The ITAT concluded that the Principal CIT did not provide sufficient opportunity to the assessee and that the A.O. had conducted adequate inquiries as per the ITAT's directions. The order of the Principal CIT was set aside, and the issue was restored for a fresh decision after providing the assessee with sufficient opportunity to present their case. The appeal of the assessee was allowed for statistical purposes.