2021 (10) TMI 650 - AT - Income Tax

Tax Tribunal Upholds Section 263 Action

Indian Explosives Pvt. Ltd. Versus PCIT-4, Kolkata

The Tribunal upheld the Principal Commissioner of Income Tax's action to invoke Section 263, as the Assessment Officer's lack of enquiry into specific ... Revision u/s 263 by CIT - whether the requisite jurisdiction necessary to assume revisional jurisdiction is existing in this case before the Pr. CIT rightfully exercised his revisional power? - HELD THAT:- We find that the AO has not made any enquiry into the issue raised by the Ld. PCIT. On specific query as to whether the commission payment made by the assessee was specifically selected for scrutiny and whether this issue was enquired into by the AO, the Ld. A.R failed to show us from PB as to whether the AO has enquired into it or not. Thus we find this is a case wherein on the five (5) issues pointed out by the Ld. PCIT, the AO has not made any enquiry at all. Thus it is a case of lack of enquiry. We respectfully agree with the proposition laid by the Hon’ble Delhi High Court in the case of ITO vs. D.G. Housing [2012 (3) TMI 227 - DELHI HIGH COURT] that when there has been an enquiry conducted by the AO on an issue which later on the Ld. PCIT felt to have not been enquired properly/inadequate enquiry by the AO, then the Ld. PCIT, in such a scenario should enquire by himself and should point out as to how & where the AO has gone wrong in his enquiry and should return a finding as to how the view of the AO was unsustainable in law. Therefore, the case law relied upon by the Ld. A.R is not applicable to the facts of the case. A.R. thereafter made a feeble attempt to show that para 2.3 on CBDT’s instruction NO. 2/2016 dated 10.03.2016 was not applicable in this case for AY 2014-15. We note that instruction of such nature is procedural in nature i.e. when there is a transfer pricing issue before the AO, he is duty bound to examine as to whether the criteria spelled out in the CBDT circular/instruction is fulfilled or not and then to take a decision whether to refer the same to TPO or not and therefore it would take immediate effect from 10.03.2016 onwards. We note that AO has passed the assessment order on 26.12.2016 and it is not the case of the assessee that the CBDT instruction no. 3/2016 has been passed after 26.12.2016. Therefore we do not find any merit in the contention of the assessee. Whether PCIT erred in taking the aid of Explanation 2(c) below section 263(1) of the Act which is applicable only from AY 2015-16? - Even if we agrees to the contention of the Ld. A.R. of the assessee that Explanation 2(c ) below section 263(1) of the Act is not applicable for AY 2014-15, still it does not in any way make any impact on the finding made by the Ld. PCIT that the AO has not enquired into the five (5) issues raised by him in the SCN and since we have concurred with the same, even if we discard explanation 2 (c) below section 263 of the Act it does not help the assessee’s contention. Therefore, in the light of the aforesaid discussion we uphold the action of the Ld. PCIT to have invoked Section 263 of the Act to interdict the assessment order dated 26.12.2016. The assessee’s appeal fails. Issues Involved:1. Jurisdiction of the Principal Commissioner of Income Tax (PCIT) to invoke Section 263 of the Income Tax Act, 1961.2. Whether the Assessment Officer (AO) conducted adequate enquiry on specific issues during the assessment proceedings.3. Applicability of CBDT Instruction No. 3/2016 in the context of transfer pricing.4. Relevance of Explanation 2(c) below Section 263(1) of the Act for the Assessment Year 2014-15.Issue-wise Detailed Analysis:1. Jurisdiction of the Principal Commissioner of Income Tax (PCIT) to invoke Section 263 of the Income Tax Act, 1961:The Assessee company challenged the jurisdiction of the PCIT to invoke Section 263, contending that the order passed by the AO was neither erroneous nor prejudicial to the interest of the Revenue. The Tribunal noted that for the PCIT to invoke revisional jurisdiction under Section 263, it must be established that the AO's order was both erroneous and prejudicial to the interest of the Revenue. This principle is supported by the Supreme Court's ruling in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC), which states that both conditions must be satisfied for the PCIT to exercise revisional powers.2. Whether the Assessment Officer (AO) conducted adequate enquiry on specific issues during the assessment proceedings:The PCIT identified five specific issues where the AO allegedly failed to conduct adequate enquiry:(a) Discrepancy in interest income as per 26AS statement and accounts.(b) Difference in other incomes as per 26AS statement and disclosed income.(c) Non-booking of capital gain/loss on the sale of immovable property.(d) Non-referral to Transfer Pricing Officer (TPO) despite adjustments on account of arms-length mark-up.(e) Lack of verification of commission payments.The Tribunal found that the AO did not make any enquiry into these issues, which constitutes a lack of enquiry. The Tribunal emphasized that an AO must discharge the dual role of an investigator and adjudicator, and failure to do so renders the order erroneous and prejudicial to the Revenue. The Tribunal rejected the Assessee's argument that the AO's perusal of the tax audit report implied adequate enquiry into these issues.3. Applicability of CBDT Instruction No. 3/2016 in the context of transfer pricing:The Assessee argued that the AO was not required to refer the matter to the TPO as per CBDT Instruction No. 3/2016. However, the Tribunal noted that the instruction is procedural and applicable from its issuance date (10.03.2016). Since the AO passed the assessment order on 26.12.2016, the instruction was applicable, and the AO should have referred the matter to the TPO.4. Relevance of Explanation 2(c) below Section 263(1) of the Act for the Assessment Year 2014-15:The Assessee contended that Explanation 2(c) below Section 263(1) of the Act, which deals with the lack of enquiry, is applicable only from AY 2015-16. The Tribunal agreed that this explanation is not applicable for AY 2014-15. However, it concluded that the AO's failure to conduct an enquiry into the five issues identified by the PCIT was sufficient to invoke Section 263, even without relying on Explanation 2(c).Conclusion:The Tribunal upheld the PCIT's action to invoke Section 263, finding that the AO's lack of enquiry into the identified issues rendered the assessment order erroneous and prejudicial to the interest of the Revenue. Consequently, the Assessee's appeal was dismissed.