2018 (12) TMI 281 - AT - Income Tax

Tribunal upholds PCIT's order on erroneous assessment, failed consideration of tax implications

The appellate tribunal upheld the Principal Commissioner of Income-tax's (PCIT) order, determining that the assessment order was erroneous and prejudicial ... Revision u/s 263 - capital gain earned by the assessee on sale of the shares has not been offered for the Book Profit tax under section 115JB - assessment order passed u/s 143 (3) by AO is erroneous and prejudicial to the interests of the revenue - Held that:- In the present case, the learned assessing officer has not even examined the computation of the Book Profit under section 115 JB. No Form No. 29B has been filed by the assessee before the assessing officer or before the principal Commissioner of income tax, which itself speaks that the learned assessing officer has not conducted any enquiry with respect to the computation of Book Profit u/s 115 JB. Also AR could not show what is the extensive enquiry the learned assessing officer has conducted with respect to the computation of the Book Profit under section 115 JB of the Act. Even before us form No. 29B was not filed. In presence of these peculiar facts and circumstances of the case in hand, the decisions relied by the assessee do not render any help to it and the same are distinguishable on facts. Therefore, we concur with the views of the learned principal Commissioner of income tax that according to the explanation (2) of section 263 of the Income 56 Tax Act, 1961, the order passed by the learned assessing officer is erroneous so far as it is prejudicial to the interest of the revenue. We confirm the finding of CIT-A in holding that the order passed by the learned assessing officer under section 143 (3) on 2/1/2016 is erroneous in so far as prejudicial to the interest of the revenue to the extent that the learned assessing officer has not examined the computation of the Book Profit under section 115 JB - decided against assessee. Issues Involved:1. Jurisdiction of the Principal Commissioner of Income-tax (PCIT) under section 263 of the Income-tax Act.2. Erroneous and prejudicial nature of the assessment order under section 143(3).3. Examination of the tax implications of the scheme of amalgamation.4. Taxability of long-term capital gains on sale of shares under section 115JB.5. Compliance with Accounting Standards and High Court directions.6. Allegations of tax evasion through the scheme of amalgamation.7. Applicability of Explanation 2 to section 263.Issue-wise Detailed Analysis:1. Jurisdiction of the Principal Commissioner of Income-tax (PCIT) under section 263:The assessee challenged the jurisdiction of the PCIT, asserting that the revisionary order under section 263 was without jurisdiction, illegal, and void-ab-initio. The PCIT exercised revisionary powers, claiming the assessment order was erroneous and prejudicial to the interests of the Revenue, as the AO failed to consider the applicability of MAT provisions on long-term capital gains (LTCG) from the sale of shares.2. Erroneous and prejudicial nature of the assessment order under section 143(3):The PCIT found the assessment order dated 02.01.2016 erroneous and prejudicial to the interests of the Revenue. The AO accepted the income returned by the assessee without adequately examining the tax implications of the amalgamation scheme, particularly the taxability of LTCG under section 115JB. The PCIT noted the AO's failure to consider the impact of the amalgamation on the computation of 'Book Profit' under section 115JB.3. Examination of the tax implications of the scheme of amalgamation:The PCIT highlighted that the AO did not sufficiently examine the tax implications of the amalgamation scheme. The scheme involved the revaluation of shares of HCL Technologies Ltd. at a fair market value significantly higher than the original purchase cost, leading to a substantial book loss on the sale of shares. The PCIT emphasized that the AO failed to question the assessee's claim for not offering LTCG for MAT purposes under section 115JB.4. Taxability of long-term capital gains on sale of shares under section 115JB:The PCIT noted that the assessee sold 1 crore shares of HCL Technologies Ltd., resulting in a significant LTCG. However, the assessee revalued the shares at a higher fair market value, leading to a book loss on the sale. The PCIT argued that the AO did not consider the applicability of the proviso to section 10(38) and section 115JB, which require LTCG to be included in the computation of 'Book Profit' for MAT purposes.5. Compliance with Accounting Standards and High Court directions:The PCIT observed that the assessee credited the difference arising from the revaluation of shares to the securities premium account instead of the capital reserve, contrary to Accounting Standard (AS) 14 and the directions of the High Court. The statutory auditor highlighted this deviation, and the PCIT argued that the AO failed to address this issue.6. Allegations of tax evasion through the scheme of amalgamation:The PCIT alleged that the scheme of amalgamation was designed to evade taxes on LTCG arising from the sale of shares. The PCIT noted that the assessee did not disclose crucial financial transactions between the appointed date and the effective date of amalgamation to the High Court, thereby concealing material facts. The PCIT argued that the scheme was a facade for tax evasion, and the AO failed to probe into the transaction.7. Applicability of Explanation 2 to section 263:The PCIT invoked Explanation 2 to section 263, which deems an order to be erroneous and prejudicial to the interests of the Revenue if the AO fails to make necessary inquiries or verification. The PCIT argued that the AO passed the assessment order without making adequate inquiries into the tax implications of the amalgamation and the computation of 'Book Profit' under section 115JB.Conclusion:The appellate tribunal upheld the PCIT's order, agreeing that the assessment order was erroneous and prejudicial to the interests of the Revenue. The tribunal found that the AO failed to examine the computation of 'Book Profit' under section 115JB and did not adequately address the tax implications of the amalgamation scheme. The tribunal dismissed the assessee's appeal and confirmed the PCIT's order under section 263.