2020 (5) TMI 209 - AT - Income Tax

Tax Tribunal Quashes Jurisdiction Issue, Upholds Reassessment Order

The Tribunal held that the Principal Commissioner of Income Tax lacked jurisdiction to invoke section 263 for the second time as the conditions for ... Revision u/s 263 - Addition u/s 68 - HELD THAT:- Action/view taken by the AO after enquiry made by him as per the direction of the Ld. Pr. CIT in the set aside proceedings dated 10.06.2016 pursuant to which the AO has reassessed the assessee after inquiry and accepted the share capital and premium collected by assessee is a plausible view and cannot be held to be unsustainable view in facts or law, therefore, the impugned action of the Ld. Pr. CIT to interfere with the reassessment order of the AO, is without jurisdiction and liable to be quashed. We are of the considered opinion that AO’s action (reassessment) pursuant to the first revisional order of Ld. Pr. CIT dated 10.06.2016, to accept the share capital and premium as a possible view in facts and law as per the ratio laid by the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. Vs. CIT [2000 (2) TMI 10 - SUPREME COURT]. AO’s action/reassessment order cannot be termed as erroneous and prejudicial to the interest of the Revenue. Therefore, the condition precedent for usurping revisional jurisdiction u/s. 263 of the Act is absent and, therefore, the Ld. Pr. CIT lacked jurisdiction to assume second time revisional jurisdiction u/s. 263 of the Act. Appeal of the assessee is allowed Issues Involved:1. Legality of the Principal Commissioner of Income Tax (Pr. CIT) invoking section 263 of the Income Tax Act, 1961 for the second time.2. Examination of the Assessing Officer's (AO) compliance with the directions given in the first revisional order under section 263.3. Evaluation of the identity, creditworthiness, and genuineness of the share capital and share premium received by the assessee company.4. Determination of whether the AO's reassessment order was erroneous and prejudicial to the interest of the revenue.Issue-wise Detailed Analysis:1. Legality of the Principal Commissioner of Income Tax (Pr. CIT) invoking section 263 of the Income Tax Act, 1961 for the second time:The main grievance of the assessee was against the action of the Pr. CIT invoking his second revisional jurisdiction under section 263 of the Act. The assessee argued that the Pr. CIT's action was without the requisite conditional precedent as laid down under section 263 of the Act. The Tribunal noted that the Pr. CIT had not pointed out any specific non-compliance by the AO with the directions given in the first revisional order dated 10.06.2016. The Tribunal emphasized that the twin conditions for invoking section 263, as laid down by the Hon'ble Supreme Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC), were not satisfied. These conditions are that the AO's order must be erroneous and prejudicial to the interest of the revenue. The Tribunal concluded that the Pr. CIT lacked jurisdiction to assume second-time revisional jurisdiction under section 263 of the Act.2. Examination of the Assessing Officer's (AO) compliance with the directions given in the first revisional order under section 263:The Tribunal examined whether the AO had complied with the specific directions given by the Pr. CIT in the first revisional order dated 10.06.2016. It was noted that the AO, during the reassessment proceedings, had issued summons to the directors of the assessee company and the shareholders, recorded their statements, and examined the relevant documents, including bank statements and financial statements. The AO accepted the identity, creditworthiness, and genuineness of the share capital and share premium received by the assessee company. The Tribunal found that the AO had conducted a detailed inquiry and complied with the directions given by the Pr. CIT in the first revisional order.3. Evaluation of the identity, creditworthiness, and genuineness of the share capital and share premium received by the assessee company:The Tribunal noted that the assessee company had provided comprehensive details about the shareholders, including their PAN, bank statements, financial statements, and confirmations. The AO had issued notices under section 133(6) and summons under section 131 to the shareholders, who responded and appeared before the AO. The Tribunal found that the shareholders were genuine, and their identity and creditworthiness were established. The Tribunal also noted that the assessee company was engaged in genuine business activities, and the share capital and premium were received from promoters and group companies.4. Determination of whether the AO's reassessment order was erroneous and prejudicial to the interest of the revenue:The Tribunal analyzed whether the AO's reassessment order was erroneous and prejudicial to the interest of the revenue. It was observed that the AO had conducted a thorough inquiry and accepted the share capital and premium based on the evidence provided by the assessee. The Tribunal referred to several judicial precedents, including the Hon'ble Supreme Court's decision in Malabar Industries Ltd. vs. CIT, which held that an order is not erroneous if the AO adopts one of the possible views permissible in law. The Tribunal concluded that the AO's reassessment order was a plausible view and could not be termed as erroneous or prejudicial to the interest of the revenue.Conclusion:The Tribunal quashed the impugned order of the Pr. CIT dated 12.03.2019, holding that the AO's reassessment order was not erroneous or prejudicial to the interest of the revenue. The appeal of the assessee was allowed.