2025 (9) TMI 647 - AT - Income Tax

Assessee wins as PCIT's revision under section 263 unjustified; inter-corporate advances not deemed dividend under section 2(22)(e)

Kesar Buildcon Pvt. Ltd. Versus The ld. Pr. CIT Ahmedabad-3

ITAT AHMEDABAD allowed the assessee's appeal, holding the PCIT's invocation of section 263 unjustified. The Tribunal found the AO conducted limited ... Revision u/s 263 - loan transaction received by the assessee company - applicability of provisions of section 2(22)(e) - HELD THAT:- AO has recorded the response as “N.A.” (not applicable) against the queries pertaining to limited scrutiny, including whether additional issues were examined. This contemporaneous record supports the assessee’s submission that the assessment remained confined strictly to the parameter of “Very Low PBDIT as compared to turnover,” and that no other issues were taken up or examined. The use of the expression “N.A.” by the AO clearly denotes that questions relating to examination of other issues did not arise in this case. Allegation of the PCIT that the AO failed to carry out inquiry on the issue of deemed dividend u/s 2(22)(e) is misplaced. AO was never required, within the statutory framework of limited scrutiny under the Faceless Assessment Scheme, to travel beyond the CASS parameter, unless the case was formally converted into complete scrutiny with prior approval of the competent authority. No such conversion is shown to have been done. The order passed by the AO cannot be termed erroneous merely because he did not make inquiries on an issue which was outside the scope of CASS selection. The action of the PCIT in invoking section 263 of the Act on an altogether different issue, namely applicability of section 2(22)(e) to the inter-corporate loan received from M/s Kesar Built Systems Pvt. Ltd., amounts to enlarging the scope of assessment beyond the CASS parameter. This is impermissible in law. It is a settled position that once the AO has raised queries on the issue for which the case is selected, considered the replies and taken a view, the order cannot be termed as “erroneous” merely because the PCIT has a different view on another issue which was never the subject matter of scrutiny. The Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] and Gabriel India Ltd. [1993 (4) TMI 55 - BOMBAY HIGH COURT] have laid down that for section 263 to be invoked, the twin conditions of error and prejudice must co-exist, and that a mere change of opinion or suspicion of inadequate inquiry does not confer jurisdiction. On merits also, the assessee’s contention is well founded. The law on this point is no longer res integra. The Hon’ble Delhi High Court in CIT v. Ankitech Pvt. Ltd. [2011 (5) TMI 325 - DELHI HIGH COURT] has categorically held that deemed dividend can be taxed only in the hands of a shareholder of the lending company, and not in the hands of a concern in which such shareholder is interested. This view has been affirmed by the Hon’ble Supreme Court in CIT v. Madhur Housing & Development Co. [2017 (10) TMI 1279 - SUPREME COURT] The advances in question, as stated by the assessee, are in the nature of inter-corporate deposits in the ordinary course of business and do not bear the character of dividend. Thus, even on merits, the foundation of the PCIT’s order fails. We are of the considered view that the assessment order cannot be regarded as erroneous and prejudicial to the interests of the Revenue. The appeal of the assessee is thus allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether a revisional order under section 263 can be validly invoked where the Assessing Officer (AO) completed assessment under the Faceless E-Assessment Scheme / CASS after limited scrutiny confined to an identified parameter, and no conversion to complete scrutiny was approved. 2. Whether the AO's alleged failure to inquire into an inter-corporate loan/receipt (Rs. 1.35 crore) from a related company can render the assessment order 'erroneous and prejudicial' when that issue was not part of the CASS-identified scrutiny parameter. 3. Whether provisions of section 2(22)(e) (deemed dividend) are attracted where the assessee is not a shareholder of the lending company but directors of the assessee are beneficial owners/shareholders in the lending company. 4. Interaction between statutory/administrative scheme of faceless assessment (notifications/instructions/ITBA proceedings feedback) and the scope of inquiries required of the AO when a case is selected for limited scrutiny under CASS. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of invoking section 263 where AO conducted limited CASS scrutiny and no conversion to complete scrutiny was recorded Legal framework: Faceless E-Assessment Scheme (National e-Assessment Centre notices under section 143(2)), CBDT Instruction No.1 (2021 & 13.10.2021) governing CASS selection and distinguishing limited scrutiny from complete scrutiny; statutory provision permitting revision under section 263 where an order is 'erroneous and prejudicial to the interests of the Revenue.' Precedent treatment: The Tribunal relied on established principles that section 263 requires both error and prejudice and that mere difference of opinion does not suffice (citing Malabar Industrial Co. Ltd. and Gabriel India Ltd. as authority for the twin conditions). The PCIT had relied on earlier authorities to the effect that failure to make inquiries may render an order erroneous (Katlary; Paville Projects cited by PCIT), but these were considered in light of the limited-scrutiny regime. Interpretation and reasoning: The Tribunal examined the CASS notices, ITBA 'Proceedings Feedback,' and CBDT instructions to determine the AO's mandate. The record showed that the selection reason (Very Low PBDIT compared to turnover) confined inquiry to that parameter; the AO issued questionnaires, examined replies, recorded responses in ITBA (responses as 'N.A.' for additional issues), and completed assessment without converting to complete scrutiny. The Tribunal interpreted the faceless assessment scheme and Instruction No.1 as preserving the sanctity of the limited scope unless formal conversion to complete scrutiny is approved by competent authority. Consequently, an AO cannot be faulted for not inquiring into matters outside the identified CASS issue absent formal conversion. Ratio vs. Obiter: Ratio - where assessment is completed under CASS limited scrutiny and there is no record of conversion to complete scrutiny, invoking section 263 on issues outside the CASS-identified scope is impermissible. Obiter - observations on the institutional workings of ITBA feedback and administrative instructions as confirming that 'N.A.' responses denote non-applicability of other queries. Conclusion: The PCIT's exercise of revisionary power was procedurally unsustainable because it sought to travel beyond the limited scrutiny scope established by the faceless assessment framework without evidence of requisite approval to broaden scrutiny; therefore section 263 could not be validly invoked on that procedural basis. Issue 2: Whether failure to inquire into the loan transaction constitutes an 'error' under section 263 when the transaction was outside CASS scope Legal framework: Section 263 standard (order erroneous and prejudicial), CBDT instructions on CASS, requirement that AO conduct inquiries confined to identified issues in limited scrutiny cases. Precedent treatment: The Tribunal accepted the principle that failure to make necessary inquiries can render an order erroneous (as invoked by PCIT authorities), but held that principle subject to the constraint that the AO's duty to inquire is circumscribed by the approved scope of scrutiny; it relied upon higher court authorities establishing that mere change of opinion or suspicion does not justify section 263 (Malabar; Gabriel). Interpretation and reasoning: Given that the AO carried out the inquiries mandated by the CASS parameter and recorded contemporaneous ITBA feedback showing no exploration of other issues, the Tribunal reasoned that the AO's omission to investigate the loan for deemed-dividend implications could not be characterized as an error in law or fact for the purpose of section 263. The Tribunal emphasised that the PCIT's criticism amounted to substituting its view for the AO's where the AO had acted within the confines of the limited scrutiny procedure. Ratio vs. Obiter: Ratio - omission to examine matters outside the CASS-specified scope does not, by itself, make the assessment order erroneous and prejudicial so as to empower revision under section 263. Obiter - reliance on ITBA 'Proceedings Feedback' as persuasive contemporaneous evidence of the AO's compliance with the limited scope. Conclusion: The PCIT's allegation of failure to inquire was misplaced; absence of inquiry on an issue not selected under CASS does not satisfy the twin conditions required for invoking section 263. Issue 3: Applicability of section 2(22)(e) - whether deemed dividend can be taxed where the assessee is not a shareholder though its directors are beneficial owners of shares in the lending company Legal framework: Section 2(22)(e) deeming provision; requirement that the recipient be a shareholder of the lending company for attribution of deemed dividend; tax audit disclosure obligations (Form 3CD clause-31(a)) as relevant to factual disclosures. Precedent treatment: The Tribunal referred to and followed the line of authorities holding that deemed dividend under section 2(22)(e) can be taxed only in the hands of a shareholder of the lending company (citing a High Court decision and a Supreme Court authority affirming that position). The PCIT's reliance on cases emphasising inquiry obligations did not alter the substantive test for attraction of section 2(22)(e). Interpretation and reasoning: Factually, the assessee was not a shareholder in the lending company; the list of shareholders was on record. The Tribunal accepted the assessee's explanation that the receipts represented inter-corporate deposits/repayments. Given the settled legal principle that deemed dividend applies to shareholders and not to non-shareholder concerns merely because directors may have beneficial interests, the Tribunal held that section 2(22)(e) was not attracted on merits. Ratio vs. Obiter: Ratio - where the recipient company is not a shareholder of the lending company, section 2(22)(e) is not attracted; beneficial ownership of directors in the lending company does not convert the recipient into a shareholder for the purpose of section 2(22)(e). Obiter - remarks on tax audit reporting relevance and the need for AO to verify facts where issue is within scope of scrutiny. Conclusion: On merits, the PCIT's substantive contention failed because the assessee was not a shareholder of the lending company and the receipts were inter-corporate deposits/repayments; section 2(22)(e) did not apply. Issue 4: Evidentiary value of ITBA 'Proceedings Feedback' and CBDT instructions in determining scope and conduct of AO's inquiry Legal framework: Administrative instructions and procedural scheme under faceless assessment; requirement that AO record outcomes in ITBA feedback per Instruction No.1. Precedent treatment: The Tribunal treated the ITBA feedback and CBDT instructions as authoritative indicia of the permitted scope of AO's examination in faceless/CASS cases. Interpretation and reasoning: The Tribunal found that the ITBA feedback, which required AO to answer whether additional issues were examined and whether limited scrutiny applied, contained contemporaneous entries (including 'N.A.' responses) corroborating that no other issues were examined. The CBDT instructions were interpreted to mean that the AO is limited to the CASS-identified issues unless conversion to complete scrutiny occurs with approval. These records were held to be material in assessing whether the AO omitted mandatory inquiries or remained within his approved mandate. Ratio vs. Obiter: Ratio - contemporaneous ITBA feedback and CBDT instructions are relevant and determinative evidence of the scope of AO's inquiries in faceless/CASS selected cases. Obiter - procedural observations on how 'N.A.' responses should be read in the absence of contrary proof. Conclusion: The ITBA proceedings feedback and CBDT instructions materially supported the conclusion that the AO's action was confined to CASS parameters and that no procedural lapse occurred warranting revision under section 263. Overall Disposition Combining procedural and substantive analyses, the Tribunal concluded that the revisional order under section 263 was unsustainable: procedurally because it impermissibly enlarged the scope of assessment beyond the CASS-identified issue without requisite approval; substantively because section 2(22)(e) was not attracted as the assessee was not a shareholder of the lending company. The Tribunal set aside the revision and restored the AO's assessment order.