2025 (9) TMI 1300 - AT - Income Tax

Revision under s.263 quashed where AO's s.143(3) r/w s.144C assessment was tenable and involved two reasonable views

AT and S India Private Limited Versus PCIT, Kolkata-2

ITAT KOLKATA - AT set aside PCIT's revision under s.263, holding the PCIT failed to form a judicious opinion that the assessment under s.143(3) r/w s.144C ... Revision u/s 263 - PCIT set aside and revising the order passed u/s 143(3) r/w section 144C on the ground that the same is erroneous and so far as prejudicial to the interest of the Revenue - HELD THAT:- PCIT cannot invoke the jurisdiction merely to get some issues examined and verified by the AO. PCIT has to come to definitive conclusion that based on his perusal of the assessment records and after taking into account the reply of the assessee, the assessment so framed by the AO is erroneous and prejudicial to the interest of the revenue. PCIT has form an opinion in a judicious manner because on the basis of his opinion the whole machinery of re-examination and reconsideration of the assessment order would be set in motion. Therefore, PCIT has invoked the revision proceedings without forming a judicious opinion as to the order being erroneous and prejudicial to the interest of the revenue and the PCIT cannot re vise the assessment merely on the ground that AO has not made elaborate discussion with regards to the impugned issues. Where two views are possible and AO has taken one view with which the ld. PCIT does not agree, even then the assessment framed by the AO cannot be treated as erroneous and prejudicial to the interest of the revenue. In the present case the AO has accepted the claim of the assessee qua provisions for warranty on sale of PCBs based on the fact that the same were allowed by the revenue in the preceding and succeeding assessment years and the claim was based upon the technical estimate and past experience. Even the case if the assessee is squarely covered in the case of Rotork Controls India Pvt. Ltd. [2009 (5) TMI 16 - SUPREME COURT] Therefore, the view taken by the AO cannot be said to be not in accordance with law or not sustainable in law. Case of the assessee is squarely covered by the decision of Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] wherein the Hon’ble Court has held that where two views are possible and the AO has taken one of the possible view, the same can not be termed as erroneous justifying the revision proceedings u/s 263 - Decided in favour of assessee. ISSUES PRESENTED AND CONSIDERED 1. Whether the Commissioner's revisionary jurisdiction under section 263 can be validly invoked to revise an assessment framed under section 143(3) read with section 144C where (a) the assessee has charged provisions for warranty in the profit and loss account, and (b) the assessee has set off brought forward unabsorbed losses and depreciation against current year income. 2. Whether the order framed by the Assessing Officer was 'erroneous insofar as it is prejudicial to the interests of the Revenue' within the meaning of section 263, having regard to (a) the basis and prior acceptance of warranty provisions, and (b) the correctness of figures of brought forward unabsorbed losses and depreciation in light of appellate orders and appeal-effect orders. 3. The legal standard applicable to exercise of section 263 - in particular, whether both twin conditions (error and prejudicial effect) must co-exist and the effect of divergent but tenable views by the Assessing Officer. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Allowability of provisions for warranty and effect on section 263 Legal framework: Expenditure is allowable if it is incurred 'wholly and exclusively' for purposes of business and is in accordance with law; revision under section 263 is permissible only when an assessing order is 'erroneous insofar as prejudicial to the interests of the Revenue.' Precedent treatment: The Court applied the principle that provisions for warranty based on technical evaluation and past experience are allowable (followed the reasoning in Rotork Controls line of authority). The Court also relied on authorities establishing that where two views are possible, an AO's view cannot be treated as erroneous unless unsustainable in law. Interpretation and reasoning: The Court found that (a) the warranty provisions were created to meet future liabilities arising from product defects under contractual distribution arrangements and were determined on the basis of a technical estimate by a technical team; (b) identical treatment of such warranty provisions was accepted by the Department in preceding and succeeding assessment years; and (c) the Assessing Officer accepted the provision after verification. On these facts the imposition of revision under section 263 on the ground that the provisions were uncrystallized or hypothetical was not justified. Ratio vs. Obiter: Ratio - where warranty provisions are grounded in technical evaluation and have been consistently accepted in related assessment years, treating such provisions as rendering an assessment 'erroneous and prejudicial' for purposes of section 263 is unsound. Obiter - general observations on contractual risk allocation supporting the factual conclusion. Conclusion: The invocation of revisionary jurisdiction under section 263 on the first ground (warranty provisions of Rs. 2,42,60,000) was invalid; the AO's allowance was a tenable view and not erroneous or prejudicial to revenue. Issue 2 - Correctness of set off of brought forward unabsorbed losses and depreciation Legal framework: Set off of unabsorbed losses and depreciation is governed by the Act and depends on correct computation of carried forward amounts as resulting from assessment and appeal-effect orders. Section 263 requires a clear finding that the AO's order is erroneous and prejudicial. Precedent treatment: The Court relied on principles that appeal-effect orders and subsequent AO orders giving effect to appellate decisions control the computation of brought forward amounts; and the Commissioner cannot invoke section 263 merely to re-examine matters where the AO has taken a possible view supported by records and appellate effect (following Malabar Industrial and related authorities on section 263's twin conditions). Interpretation and reasoning: The PCIT relied on figures from the tax audit report (para 32A) which reflected assessment orders prior to giving appeal effect. The Bench examined the appeal-effect orders and AO orders giving effect to appellate decisions and found that the assessed carried forward figures used by the AO (higher unabsorbed depreciation) were supported by those orders. Therefore the alleged excess claim of Rs. 22,11,90,246 was based on an incorrect reliance on pre-appeal-assessment figures; the AO's computation was in accordance with the appeal-effect orders and not erroneous. Ratio vs. Obiter: Ratio - where the AO's allowance/set-off of brought forward losses and depreciation conforms to appeal-effect orders, the Commissioner cannot treat the assessment as erroneous under section 263 simply because the tax audit report reflected prior assessment figures. Obiter - observations on auditors' reports not being binding where contrary to appeal-effect assessments. Conclusion: The invocation of section 263 on the second ground (excess claim of brought forward unabsorbed losses/depreciation) was unjustified; the AO's treatment conformed to appeal-effect orders and did not render the assessment erroneous or prejudicial. Issue 3 - Standard for exercise of section 263: twin conditions and 'two views' principle Legal framework: Section 263 empowers the Commissioner to revise an assessment only if the AO's order is both erroneous and prejudicial to revenue; both conditions must coexist. An incorrect application of law, non-application of mind, or factual illegality can make an order erroneous. Precedent treatment: The Court applied established authority holding (a) both conditions under section 263 must be satisfied concurrently; and (b) where two reasonable views are possible, an AO's adoption of one such view cannot be treated as erroneous unless unsustainable in law (principles drawn from Malabar Industrial and subsequent Apex Court rulings such as Max India and G M Mittal). Interpretation and reasoning: The Bench held that the PCIT did not form a judicial opinion that the AO's order was erroneous and prejudicial on the materials; rather, the PCIT effectively sought reassessment to get issues further examined. The PCIT's reliance on tax audit figures without reconciling appeal-effect orders demonstrates the absence of definitive satisfaction of both statutory conditions. The Court emphasised that section 263 is not to be used to correct every perceived deficiency or to prefer the Commissioner's view over a tenable AO view. Ratio vs. Obiter: Ratio - both error and prejudicial effect must be positively established before section 263 is exercised; mere possibility of error or desire for re-examination is insufficient. Obiter - procedural remarks on how a Commissioner should document the formation of opinion before invoking section 263. Conclusion: Section 263 was incorrectly invoked because the twin conditions were not simultaneously satisfied and the AO's decisions reflected tenable views supported by documentary and appellate-effect material. Final Disposition The revisionary proceedings and consequent order under section 263 were quashed; the assessment framed under section 143(3) read with section 144C was held to be neither erroneous nor prejudicial to the interests of the Revenue on the grounds raised (warranty provisions and set-off of brought forward unabsorbed losses/depreciation). The appeal was allowed.