2020 (10) TMI 249 - AT - Income Tax

Tribunal upholds Section 263, directs reassessment for inadequate examination.

Sri Sushanta Kumar Choudhury Versus The Pr. CIT, Sambalpur

The tribunal upheld the Principal Commissioner of Income Tax's invocation of Section 263, determining the assessment as erroneous and prejudicial to ... Revision u/s 263 - limited scrutiny assessment - order passed by the AO is erroneous and prejudicial to the interest of Revenue - HELD THAT:- Contention of ld. AR regarding revisionary power exercised by the Pr.CIT in case of limited scrutiny, is not accepted on the basis of recent decision of the coordinate bench of the Tribunal in case of Baby Memorial Hospital Ltd. [2019 (11) TMI 703 - ITAT COCHIN]. If there is an escapement of income or potentiality of income involved in the issues which has not been done by the AO while completing the limited scrutiny assessment the AO could have obtained the permission from the ld. Pr.CIT if he finds that there is a potentiality of the income. In the present case going through the assessment order, there is no any whisper in the order of assessment passed by the AO regarding the subject matter of purpose for the scrutiny and he has made addition on the other subjects which was not part of the aforesaid purpose of the limited scrutiny. In these circumstances, the AO should have obtained permission from the ld. Pr.CIT/CIT. In view of this, the order passed by the AO is also erroneous and prejudicial to the interest of revenue. Income-tax Officer is not only an adjudicator but also an investigator. It is his duty to ascertain the truth of the facts stated in the return. When the circumstances of the case are such so as to provoke an enquiry, it is his duty to make proper enquiry. First he should investigate the matters on the basis of which the assessee has prepared income tax return thereafter he should reach to a logical conclusion that the income shown is as per the Income Tax Act. Failure to make enquiry in such circumstances would make the assessment order erroneous and prejudicial to the interest of the revenue. We concur with the submissions of Ld. CIT-DR that it was a case of lack of inquiry and there was no application of mind by AO on the issues which formed subject matter of revisional jurisdiction u/s 263. Therefore, we do not find any illegality in the action of Ld. Pr. CIT in exercising the said jurisdiction - Decided against assessee. Issues Involved:1. Condonation of delay in filing the appeal.2. Invocation of Section 263 by the Principal Commissioner of Income Tax (Pr.CIT).3. Limited scrutiny assessment and its scope.4. Examination of service tax liability under Section 43B.5. Disallowance under Section 40(a)(ia) for non-deduction of tax at source.6. Treatment of sundry debtors and unexplained income under Section 68.Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The appellate tribunal noted a delay of 30 days in filing the appeal. The assessee filed an application for condonation of delay along with an affidavit explaining the reasons for the delay. The Revenue did not object to this application. The tribunal found the reasons provided to be reasonable and condoned the delay, allowing the appeal to be heard on merits.2. Invocation of Section 263 by the Pr.CIT:The Pr.CIT invoked Section 263, arguing that the assessment order dated 19.12.2016 was erroneous and prejudicial to the interests of the Revenue. The Pr.CIT identified several issues that were not adequately examined by the Assessing Officer (AO), including service tax liability, non-deduction of tax at source, and unexplained income. The tribunal examined whether the Pr.CIT was justified in invoking Section 263, considering the limited scope of scrutiny under Section 143(3).3. Limited Scrutiny Assessment and its Scope:The assessee’s case was selected for limited scrutiny based on specific issues: contract receipts/fees mismatch, sales turnover mismatch, and tax credit mismatch. The AO completed the assessment by making minor additions. The tribunal noted that the AO had not expanded the scope of scrutiny beyond these issues, as required by CBDT guidelines. The tribunal discussed whether the Pr.CIT could invoke Section 263 to address issues outside the limited scrutiny scope.4. Examination of Service Tax Liability under Section 43B:The Pr.CIT found that the AO failed to add back service tax liabilities of Rs. 24,66,126/- for the current year and Rs. 7,08,245/- for earlier years, which were not paid on or before the due date for filing the return. The tribunal noted that the AO did not verify these amounts, which should have been disallowed under Section 43B. The Pr.CIT directed the AO to verify and make necessary additions.5. Disallowance under Section 40(a)(ia) for Non-Deduction of Tax at Source:The Pr.CIT observed that the assessee had debited Rs. 27,59,555/- towards 'Interest on Equipment Finance' without deducting tax at source under Section 194A. This amount should have been disallowed under Section 40(a)(ia). The tribunal found that the AO failed to examine this issue and directed the AO to verify and disallow the amount if no tax was deducted.6. Treatment of Sundry Debtors and Unexplained Income under Section 68:The Pr.CIT noted that Rs. 28,00,006/- receivable from M/s Baba Langaleswar Fuel was shown as 'capital introduced' instead of 'sundry creditors.' This amount should have been treated as unexplained income under Section 68. The tribunal found that the AO did not examine this issue and directed the AO to verify and make necessary additions if the amount remained unexplained.Conclusion:The tribunal upheld the Pr.CIT's invocation of Section 263, finding that the AO's assessment was erroneous and prejudicial to the interests of the Revenue due to lack of proper enquiry and verification on key issues. The tribunal directed the AO to reframe the assessment after proper verification, providing the assessee an opportunity to present their case. The appeal of the assessee was dismissed.