2025 (9) TMI 643 - AT - Income Tax

Revision under section 263 invalid where assessing officer adopted a reasonable view disallowing purchases under section 37 after inquiries

Arvind Kumar C/o Piyush International Versus The PCIT, Rohtak

ITAT DELHI - AT held that the revision u/s 263 was invalid where the AO had adopted a possible view by disallowing purchases under s.37 and had conducted ... Revision u/s 263 - Disallowance of expenses - whether disallowance should be u/s 37 or 69C? - HELD THAT:- In this case, the AO disallowed 100% purchases and PCIT has not doubted the same. Only issue is whether disallowance should be u/s 37 or 69C. Against this, AO gave specific finding that as per his opinion, disallowance should be u/s 37 of the Act. Thus, possible view has been taken by AO and in such cases, Courts have taken consistent view that action u/s 263 is invalid. The our view is fortified by the Hon'ble Supreme Court decision in case of Malabar Industrial Co Ltd [2000 (2) TMI 10 - SUPREME COURT] and CIT vs Amitabh Bachchan [2016 (5) TMI 493 - SUPREME COURT] AO has accepted a possible view and the PCIT wants to impose his view on the possible view taken by the AO, which is against the cannons of law. Section 37 of the Act is specific provision which disallows business expense when it is found to be not wholly and exclusively for business. In contrast, section 69C applies where the explanation of assessee regarding nature and source of expense was not satisfactory to AO. In this case, the nature of expense i.e. purchases and source of expense i.e bank payments are not doubted. Only doubt was regarding genuineness of expense and thus disallowance has been correctly made u/s 37 by AO. Our views are fortified in the case of Shashikant Bhavajjibhai Rajpara [2023 (4) TMI 683 - ITAT RAJKOT] and Vijuba Jutubha Jadeja [2023 (9) TMI 206 - ITAT RAJKOT] where it was held that if purchase is held to be bogus then it is case of 'no expense' and in such a position, disallowance cannot be u/s 69C of the Act. We also find that the PCIT’s observation that the Assessing Officer has incorrectly ignored to apply ratio laid down in c/o NK Proteins Ltd [2017 (1) TMI 1090 - SC ORDER] is not valid. We also find that the Assessing Officer had, in re-assessment u/s 143(3)/147 conducted physical verification from supplier, collected statement of alleged controller of supplier, considered reply of assessee and thereafter passed order disallowing expense u/s 37 of the Act. Thus, observation of PCIT that there is lack of enquiry on the part of AO, is not justified. We further find that the PCIT has failed to point out enquiry not conducted by AO. Assessee appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the order passed by the Assessing Officer disallowing alleged bogus purchases under section 37 of the Act is an erroneous order prejudicial to the revenue so as to justify revision under section 263. 2. Whether disallowance of purchases in reassessment should have been made under section 69C instead of section 37, and whether application of a special tax rate under section 115BBE was warranted. 3. Whether the Assessing Officer conducted adequate enquiry during reassessment (including physical verification and collection of supplier/controller statements) so as to preclude exercise of revisional jurisdiction. 4. Whether a non-speaking dismissal of special leave or similar order of the highest court relied upon by the revisional authority is binding so as to require the Assessing Officer to follow that view. ISSUE-WISE DETAILED ANALYSIS - 1. Validity of exercise of revisional jurisdiction under section 263 where AO took a possible view by disallowing under section 37 Legal framework: Section 263 empowers the Principal Commissioner/Commissioner to revise an assessment if it is erroneous and prejudicial to the interests of the revenue; however, revision cannot be used to substitute the Commissioner's view for a possible view legitimately taken by the Assessing Officer. Precedent treatment: The Tribunal relied on higher-court authority holding that where the Assessing Officer has taken a possible view after enquiry, revisional jurisdiction is not exercisable to impose an alternative view. Interpretation and reasoning: The Assessing Officer disallowed the full amount as not genuine and recorded a specific finding that disallowance was to be made under section 37. The Tribunal found this to be a plausible, reasoned conclusion reached after enquiry; thus the revisional order attempting to convert that view into an error prejudicial to revenue is impermissible. The revisional authority sought to supplant the AO's possible view with its own categorical view, contrary to the canon that section 263 cannot be used to merely prefer one possible view over another. Ratio vs. Obiter: Ratio - where an AO takes a possible, reasoned view on disallowance under a particular provision, section 263 cannot be invoked merely to replace that view with the Commissioner's preference. Obiter - ancillary comments on policy or generalizations not directly determinative of the facts. Conclusion: The exercise of revisional jurisdiction in this case was invalid to the extent it sought to overturn the AO's possible view; the AO's order is restored on this ground. ISSUE-WISE DETAILED ANALYSIS - 2. Appropriate charging section for disallowance: section 37 v. section 69C, and applicability of special tax rate Legal framework: Section 37 disallows business expenditure not laid out wholly and exclusively for business; section 69C applies where the assessee's explanation about the nature or source of any expenditure is unsatisfactory. A separate provision prescribes a special tax rate for unexplained income in certain circumstances. Precedent treatment: The Tribunal considered decisions of adjudicatory forums that hold distinction between a case of non-existence of expense (treated under section 37) and a case of unexplained expenditure/source (treated under section 69C). It also considered authority on the limited binding effect of non-speaking dismissals at the highest court. Interpretation and reasoning: Facts showed purchase entries, voucher evidence, bank payments and supplier contact - the AO accepted the nature (purchases) and source (bank payments) but found the transactions not genuine. That factual matrix, in the Tribunal's view, fits section 37 (no allowable business expenditure) rather than section 69C (where nature/source are disputed). Regarding tax rate, the revisional authority's contention that the special rate should apply arose from characterizing the disallowance under provisions attracting special rate; since the AO validly characterized the disallowance under section 37, application of the special rate was not warranted on the facts. Ratio vs. Obiter: Ratio - where the nature and source of expenditure are established but genuineness is denied, disallowance under section 37 is appropriate and section 69C is inapplicable; consequently, special tax rate tied to unexplained income provisions is not automatically triggered. Obiter - observations about policy preferences for invoking harsher provisions in tax administration. Conclusion: Disallowance under section 37 was legally appropriate on the facts; section 69C and the special tax rate were not correctly invoked by the revisional authority. ISSUE-WISE DETAILED ANALYSIS - 3. Adequacy of enquiry by the Assessing Officer in reassessment proceedings Legal framework: Reassessment and disallowance must be founded on material and adequate enquiry; lack of enquiry can render an assessment erroneous and prejudicial. Conversely, where AO conducts physical verification, obtains supplier/controller statements and considers the assessee's explanations, such enquiry normally suffices. Precedent treatment: The Tribunal applied the principle that absence of pointed deficiencies in the AO's inquiry, or failure by the Commissioner to identify specific investigative omissions, undermines a charge of inadequate enquiry under section 263. Interpretation and reasoning: The AO carried out physical verification of the supplier, obtained statement(s) including that of the alleged controller, examined books, purchase bills, bank statements and auditor certificate, and then disallowed the expense. The Tribunal found that the revisional authority did not point to any concrete investigative step omitted by the AO; hence the allegation of inadequate enquiry was unsubstantiated. Ratio vs. Obiter: Ratio - where the AO has performed specific investigatory steps (physical verification, statements, documentary scrutiny) and records reasons for disallowance, a revisional charge of lack of enquiry requires identification of specific lapses; absent such identification, revision is unwarranted. Obiter - comment that different facts might permit revisional interference. Conclusion: The AO's enquiry was adequate on the record; revisional interference on the ground of lack of enquiry was unjustified. ISSUE-WISE DETAILED ANALYSIS - 4. Binding effect of a non-speaking dismissal by the highest court relied upon by the revisional authority Legal framework: A non-speaking dismissal or a non-meritorious order at the highest court lacks the binding precedential force of a reasoned judgment; the doctrine of merger may not import reasoned findings where the special leave dismissal is non-speaking and the High Court's ratios on different issues are not merged in a manner that binds subsequent tribunals on unrelated legal questions. Precedent treatment: The Tribunal treated the revisional authority's reliance on an unreasoned dismissal as insufficient to mandate follow-up by the AO where the underlying issues before the higher forum did not correspond to the questions raised in the instant proceedings. Interpretation and reasoning: The revisional authority asserted that the AO failed to apply the supposed ratio of the highest court's order. The Tribunal observed that the referenced order was a non-speaking dismissal in which the precise statutory question (section 37 v. section 69C) was not argued or decided; therefore reliance on that order as a binding precedent was misplaced. Ratio vs. Obiter: Ratio - a non-speaking dismissal by the highest court does not impose a binding legal ratio on distinct statutory questions not adjudicated below; it cannot be used to overturn a reasoned AO view on a different point. Obiter - remarks on the limited persuasive value of administrative reliance on such orders. Conclusion: The revisional authority's use of the non-speaking higher-court dismissal to fault the AO was unsustainable; the AO was not bound to apply a non-existent ratio on the specific issue. FINAL CONCLUSION (CROSS-REFERENCING RELATED POINTS) Combining the foregoing: (a) the AO reached a possible, reasoned view to disallow purchases under section 37 after adequate enquiry (see Issues 1 and 3); (b) on the facts, section 37 - not section 69C nor the special rate provision - was the appropriate head for disallowance (see Issue 2); and (c) reliance on a non-speaking higher-court dismissal did not justify revisional interference (see Issue 4). Accordingly, the revisional order directing fresh adjudication was set aside and the AO's assessment order restored.