2024 (5) TMI 732 - AT - Income Tax

Assessment order restored after revisionary proceedings under section 263 deemed invalid without prior section 153D revision

Gyan Infrabuild Private Limited Versus Principal Commissioner of Income-tax (Central), Patna

ITAT Patna quashed the revisionary order u/s 263 where Pr. CIT revised an assessment order u/s 153A without first revising the approval u/s 153D. The ... Revision u/s 263 - order framed u/s 153A of the Act has been held to be erroneous and prejudicial to the interest of the revenue - whether the revisionary order u/s. 263 of the Act has been quashed, where only the order u/s 153A of the Act is revised without revising order u/s 153D? - HELD THAT:- We find merit that ld. Pr. CIT erred in assuming jurisdiction u/s 263 by revising order u/s 153A r.w.s. 143(3) of the Act without considering that prior approval already accorded to ld. AO u/s 153D of the Act and secondly when orders u/s 153A of the Act has been passed after receiving approval u/s 153D, PCIT erred in revising order u/s 153A of the Act without first revising the order u/s 153D as which means that no defect has been observed by ld. Pr. CIT in approval u/s 153D. Thus the action of the ld. Pr. CIT assuming jurisdiction u/s 263 of the Act cannot be held to be tenable, the impugned proceedings deserves to be quashed on this grounds itself. Whether Detailed enquiry has been conducted and one of the view legally permissible has been taken? - Hon’ble Apex Court in its judgment in the case of CIT vs. Electro House [1971 (9) TMI 10 - SUPREME COURT] had held that “the CIT before reaching his decision and not before commencing his enquiry is to give the assessee an opportunity of being heard and make or cause to make such enquiry as he deems necessary”. We note that in the instant case the learned PCIT before reaching his decision that the documents found, belongs to the assessee had made no enquiry whatsoever. Thus learned PCIT failed to appreciate that before he could have considered the assessment order to be erroneous and prejudicial to the interest of the revenue, he ought to have brought material on record to show that the documents belongs to the assessee and not by merely referring to those very documents which already stood examined by the AO and considering the statement of Shri Satyendra Kumar Sharma, for coming to the conclusion that the documents cannot be said to be belonging to the assessee. AO has taken one of the legally permissible view and made addition in the hands of the person, he was of the believe, to be subjected to addition. Therefore, assessee succeeds on the second plea that ld. Pr. CIT erred in assuming jurisdiction in the given case where enquiry has been conducted and the order of the AO is not prejudicial to the interest of the revenue as huge additions have been made in the hands of Shri Satyendra Kumar Sharma, and thus one of the limbs of Section 263 of the Act is not fulfilled and revision of the assessment order cannot be held to be valid and tenable in the eyes of law and thus the impugned proceedings u/s 263 of the Act, deserves to be quashed. We, taking strength of the judgment of D.G. Housing Projects Ltd. [2012 (3) TMI 227 - DELHI HIGH COURT] we find that the ld. Pr. CIT has merely referred to the seized material but has not made any further enquiry about the correctness of such documents, as to whether they belong to the assessee, or pertain to the year under consideration. In the light of the settled judicial precedents referred supra and on our examination of the facts of the case including the enquiries conducted by the AO regarding the transactions carried out during the impugned year as well as examining the seized material, and then getting necessary approval u/s 153D of the Act and also observing that the ld. Pr. CIT did not make any specific enquiry prior to assuming jurisdiction, find the impugned revisionary proceedings as bad in law and deserves to be quashed on account of the following:- a) that when there is an approval u/s 153D of the Act, it has been held consistently by the Hon’ble Courts (referred supra) that revisionary power u/s 263 of the Act cannot be exercised. b) even otherwise, without revising the order u/s 153D of the Act, and finding them to be erroneous and prejudicial to the interest of the revenue, revisionary powers cannot be invoked for the assessment order framed u/s 153A/143(3) of the Act after getting approval u/s 153D of the Act. c) that when the AO has conducted detailed enquiry, examined the seized records, made necessary observations in the assessment order, referred to various statements filed by the assessee and having taken one of the legally permissible view, then in such circumstances, the revisionary powers cannot be exercised just on the ground that adequate enquiry has not been done. d) that revisionary proceedings cannot be held to be justified unless ld. Pr. CIT had carried out independent enquiry specifically dealing with the details in his possession, for the issues raised in the show cause notice u/s 263 of the Act. e) that when the AO, based on his observations and examination of records had made addition in the hands of another assessee, the ld. Pr. CIT without revising the assessment order of other assessee, which has been framed by the same Assessing Officer cannot revise the assessment order in the case of the assessee and directing to make the additions as the same would tantamount to double addition. f) that the finding on merit of the ld. Pr. CIT contains various mistakes as the documents referred are not for the assessment year in dispute and some of the documents are not belonging to the assessee. Thus as the order of the AO is neither erroneous nor prejudicial to the interest of revenue, there was no scope for the ld. Pr. CIT to revisit the order of the ld. AO - Therefore, the impugned order u/s 263 is quashed and assessment order framed u/s 153A/143(3) is restored. Assessee appeal allowed. Issues Involved:1. Condonation of Delay2. Validity of Revisionary Proceedings u/s 2633. Detailed Enquiry Conducted by Assessing Officer4. Merits of the CaseSummary:Condonation of Delay:The Tribunal condoned a 14-day delay in filing the appeals, acknowledging the assessee's reasonable cause for delay based on directions from the Hon'ble Patna High Court.Validity of Revisionary Proceedings u/s 263:The Tribunal examined whether the Principal Commissioner of Income Tax (Pr. CIT) could invoke revisionary powers u/s 263 without revising the approval granted u/s 153D. It was held that the Pr. CIT erred in assuming jurisdiction u/s 263 by revising the assessment order u/s 153A without revising the approval u/s 153D. The Tribunal relied on multiple judicial pronouncements, including the Hon'ble Supreme Court's decision in Malabar Industrial Co. Ltd. vs. CIT, which established that an order cannot be revised unless it is both erroneous and prejudicial to the revenue. The Tribunal concluded that the revisionary proceedings were invalid and deserved to be quashed.Detailed Enquiry Conducted by Assessing Officer:The Tribunal noted that the Assessing Officer (AO) had conducted a detailed enquiry during the assessment proceedings, including issuing questionnaires and receiving detailed replies from the assessee. The AO's assessment order was passed after obtaining the necessary approval u/s 153D, indicating that the AO had taken one of the legally permissible views. The Tribunal held that the Pr. CIT could not invoke revisionary powers merely on the grounds of inadequate enquiry when a reasonable enquiry had been conducted.Merits of the Case:On the merits, the Tribunal found that the Pr. CIT had not made any specific enquiry to substantiate the assumption that the documents in question belonged to the assessee. The Tribunal emphasized that the Pr. CIT should have conducted an independent enquiry before assuming jurisdiction u/s 263. The Tribunal also noted that the documents referred to by the Pr. CIT did not pertain to the assessment year in question and some documents did not belong to the assessee. Therefore, the Tribunal concluded that the assessment order was neither erroneous nor prejudicial to the revenue.Conclusion:The Tribunal quashed the impugned order u/s 263 and restored the assessment order framed u/s 153A/143(3). The appeals for Assessment Years 2015-16 to 2018-19 were allowed.