2025 (10) TMI 88 - AT - Income Tax

Partly set aside s.263 revision: gratuity, unpaid bonus, compensation, write-offs, low-rate interest additions reversed; s.69B r.w.s.115BBE remitted

ITAT PUNE - AT partly confirmed PCIT's revision order under s.263: additions for gratuity provisions, unpaid bonus, cancellation-compensation, ... Revision u/s 263 - Disallowance on account of provisions of Gratuity Fund - HELD THAT:- Provision as made is already been added to the income in the computation of income and the assessee has only claimed the actual payment of Gratuity - AO has examined the issue in details and therefore issue need not be set-aside to the file of ld. Assessing Officer. Finding of ld.PCIT on this issue stands reversed. Disallowance u/s. 43B r.w.s.36(1)(ii) being unpaid bonus - We note that the unpaid bonus was paid by the sister concern of the assessee Sharada Construction and Investment Company prior to the extended due fate of filing of the return of income u/s. 139(1) of the Act. Thus, no addition u/s. 43B is called for. Therefore, the issue need not be set aside to the file of ld. Assessing Officer. Finding of ld.PCIT on this issue stands reversed. Disallowance u/s. 40(a)(ia) - TDS u/s 194A - non deduction of tax on interest paid to PNB Housing Finance Limited - We find that PNB Housing Finance Limited falls within the exception u/s. 194A(4)(iii). Though the assessee has not deducted the tax on the interest paid to PNB Housing Finance Limited but in case the PNB Housing Finance Limited has offered the income in its income-tax return, then no disallowance can be made in terms of section 40(a)(ia) of the Act. However, since the ld. AO has not examined this aspect, the matter needs to be set aside to his file for denovo adjudication. Even in the case of Satish Arora [2019 (10) TMI 1620 - ITAT DELHI] referred and relied on by assessee, the Tribunal has restored the issue of non deduction of tax on the interest paid to PNB Housing Finance Limited to the file of Assessing Officer directing him to call for the details by issuing notice u/s. 133(6) - PCIT has rightly held that this issue deserves to be set aside to the file of ld. AO for fresh examination. Finding of ld. PCIT is affirmed. Non deduction of tax on the compensation for cancellation of booking made to customers - The compensation is in the nature of a judgment debt or akin to a judgment debt, the payment of which cannot establish a debtor-creditor relationship between the parties. As such, the said sum or any part thereof cannot be liable to tax deducted at source under the relevant provisions of the IT Act in light of judgment of Sainath Rajkumar Sarode and Others Vs. State of Maharashtra and Others [2021 (8) TMI 1009 - BOMBAY HIGH COURT] We thus find that this issue also need not be restored to the file of ld. AO in the set aside assessment proceedings. Finding of ld.PCIT on this issue stands reversed. Addition on account of debit/credit balances written off - Estimated income is credited in the books and recognized as income. Customer account is debited with corresponding credit to income and net sale of electricity is booked when the credit note is received and invoice is raised. It was also submitted that since the income has already been recognized on the basis of accrual, it will tantamount to double taxation if the income is again recognized on the basis of generation of invoice. AO has accepted this contention and therefore since detailed enquiry has been conducted, ld. PCIT erred in restoring this issue to the file of ld. AO in the set aside proceedings. Finding of ld.PCIT on this issue stands reversed. Disallowance of interest - We note that the assessee has given advance of Rs. 1.45 crore to Prashasti Properties Pvt. Ltd. for purchase of property. However, interest @4% has been charged as against the prevailing market rate of 12%. We note that this issue has been examined by the ld. AO and he has found that the transaction of giving advance to Prashasti Properties Pvt. Ltd, is in due course of business and further the assessee had sufficient interest free funds which are higher than the interest free/low interest bearing advances. AO accepted the contention of the assessee which is one of the legally permissible view and therefore we do not find any justification to set aside this issue to the file of ld. AO. Finding of ld.PCIT on this issue also stands reversed. Advance for purchase of property which in view of ld. PCIT has not been examined by the ld. AO and therefore provisions of section 69B r.w.s.115BBE of the Act deserves to be invoked - Merely receiving the reply to the issues raised in the notice u/s. 142(1) cannot be taken as complete exercise for carrying out proper assessment proceedings in such type of issue and needs deeper examination as it involves huge revenue. Though assessee has submitted that the advances were given for purchase of property and even the interest has also been earned thereon, we are still of the considered view that proper enquiry as required in such type of issue has not been conducted by the ld. AO. Finding of ld.PCIT on this issue deserves to be sustained and the matter has been rightly restored by ld. PCIT to the file of ld. AO for carrying out the assessment afresh as per the directions given in the impugned order. In view of the above, the findings of ld. PCIT in the impugned order u/s. 263 of the Act are partly confirmed. 1. ISSUES PRESENTED AND CONSIDERED Issue 1: Whether the Principal Commissioner's assumption of jurisdiction under section 263 is valid - i.e., whether the assessment order is 'erroneous' and 'prejudicial to the interests of the revenue' within the meaning of section 263 and its Explanation 2. Issue 2: Whether the assessment order should be set aside/confirmed in respect of specified substantive items where the Commissioner found lack of adequate inquiry by the Assessing Officer: (a) provisions for gratuity (claim v. actual payment); (b) unpaid bonus and applicability of section 43B; (c) disallowance under section 40(a)(ia) for non-deduction of TDS on (i) interest paid to a financial institution and (ii) compensation paid to customers; (d) addition on account of debit/credit balances written off (recognition of electricity sales/invoicing); (e) alleged unexplained advances for purchase of property invoking section 69B r.w.s.115BBE; and (f) concessional/interest-free advances to sister concerns (arm's-length/availability of interest-free funds). 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Jurisdiction under section 263: legal framework, precedents, reasoning, ratio/obiter, conclusion Legal framework: Section 263 empowers the Commissioner to call for and examine records and, if an order is 'erroneous in so far as it is prejudicial to the interests of the revenue', to revise, enhance, modify or set aside the assessment; Explanation 2 (effective 01.06.2015) specifies that an order is erroneous and prejudicial if passed without making inquiries/verification which should have been made or allowing relief without inquiry. Precedent treatment: The Court considered Supreme Court authority stating s.263 cannot be used to correct every error but applies where an order is erroneous (Malabar Industrial) and authorities holding an AO's acceptance without adequate enquiry renders the order erroneous (Rampyari Devi Saraogi; Gee Vee Enterprises; Swarup Vegetable; Hill Queen Investment). Interpretation and reasoning: The Tribunal analyzed the statutory four-stage exercise under s.263 (call for records; form prima facie opinion of error/prejudice; issue show-cause and conduct inquiry; pass reasoned order). The Commissioner's jurisdiction was evaluated against Explanation 2: if the AO failed to make inquiries/verification that ought to have been made, the order is erroneous. The Tribunal found that the assessor had in many respects conducted detailed queries under notice u/s.142(1) and had considered submissions; however, for some high-value items (notably advances for property), the AO's inquiry was limited to receipt of replies and lacked deeper verification of source/genuineness. Ratio vs. Obiter: Ratio - s.263 jurisdiction is valid where Explanation 2 conditions are satisfied (failure to make required inquiries). Obiter - general observations on the sequential compartments of s.263 and administrative control. Conclusions: The Tribunal held that the Commissioner's assumption of jurisdiction was valid in part. Ground challenging assumption of jurisdiction was dismissed (particularly because the assessee did not press one ground [s.14A]); but the scope of valid exercise under s.263 depends on item-wise assessment of whether AO applied mind and conducted relevant inquiries. Issue 2(a) - Provision for gratuity: legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Claim for provision for gratuity on accrual v. actual payment; tax treatment examined under relevant sections (deductibility subject to factual verification); AO's duty to verify payments where part provision claimed and part payment admitted. Precedent treatment: No contrary precedent required; question determined on facts and whether AO examined records. Interpretation and reasoning: AO recorded the claimed provision and added part to income; AO examined details under s.142(1) and carried out enquiry. The Commissioner's contention that AO failed to verify payments was found incorrect on record. Ratio vs. Obiter: Ratio - where AO has examined the claim and incorporated appropriate additions, s.263 cannot be invoked to set aside the issue. Conclusions: Finding of Commissioner on gratuity set aside; no need to remit to AO. Commissioner's order reversed on this issue. Issue 2(b) - Unpaid bonus and section 43B: legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Proviso to section 43B requires actual payment on or before due date for return under s.139(1) to claim deduction; liability paid by related entity requires tracing of accounting treatment in assessee's books. Precedent treatment: Applied statutory test of payment before due date; no special precedent necessary. Interpretation and reasoning: Although payment originated from a sister concern, evidence showed bonus was paid by that sister concern before extended due date for filing return; AO examined the issue and concluded accordingly. Ratio vs. Obiter: Ratio - where payment is established to have been made within the time prescribed, no disallowance under s.43B is warranted and s.263 is not attracted. Conclusions: Commissioner's direction to re-examine this issue was reversed; no remand required. Issue 2(c)(i) - Non-deduction of TDS on interest paid to PNB Housing Finance Ltd. (section 40(a)(ia)): legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Section 40(a)(ia) disallows expenditure where tax is deductible at source but not deducted; exception where payee is exempted under specific provisions (e.g., section 194A(4)(iii) for certain institutions) or where payee has offered income and AO verifies that payee has taxed the income. Precedent treatment: Tribunal precedent (Satish Arora) restored similar issue to AO for calling details under s.133(6) to verify whether payee offered income. Interpretation and reasoning: Payee (PNB Housing Finance Ltd.) falls within exception under s.194A(4)(iii). Alternative route: if payee has offered income in its return, disallowance under s.40(a)(ia) is not attracted. AO had not verified whether the payee had offered the income; Commissioner correctly held the matter should be remitted to AO for de novo adjudication and verification. Ratio vs. Obiter: Ratio - absence of AO's verification as to payee's tax treatment justifies remand under s.263; verification is necessary before applying s.40(a)(ia). Conclusions: Commissioner's set-aside in respect of interest to PNB Housing Finance Ltd. is affirmed; remand to AO directed for verification. Issue 2(c)(ii) - Compensation for cancellation of booking (TDS applicability): legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: TDS applicability depends on nature of payment; payments akin to judgment debt or compensation for breach may not attract TDS provisions if not in natura a taxable receipt requiring deduction. Precedent treatment: Cited Bombay High Court authority holding certain compensation payments are not subject to TDS. Interpretation and reasoning: Tribunal examined submissions and concluded the compensation resembles a judgment debt/compensatory payment that cannot be treated as income liable to TDS under relevant provisions; AO/Commissioner had not required further verification but Commissioner's direction to reinvestigate was unnecessary. Ratio vs. Obiter: Ratio - where payment is compensatory/akin to judgment debt, it may not be liable to TDS and no disallowance under s.40(a)(ia) arises; AO need not re-open absent contrary facts. Conclusions: Commissioner's direction to remit this issue was reversed; no remand required. Issue 2(d) - Debit/credit balances written off (recognition of electricity sales): legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Revenue recognition on accrual basis v. invoicing; AO's duty to examine accounting treatment and avoid double taxation. Precedent treatment: Not dependent on external precedent; resolved on facts and accounting practice submitted. Interpretation and reasoning: AO raised specific queries; assessee explained treatment (accrual on generation; later reversal when invoice raised by MSEDCL); AO accepted the explanation after detailed enquiry. Commissioner's view that AO failed to verify was not supported by record. Ratio vs. Obiter: Ratio - where AO has addressed and accepted detailed factual submissions on revenue recognition, s.263 is not attracted. Conclusions: Commissioner's set-aside on this issue reversed; no remand required. Issue 2(e) - Alleged unexplained advances for purchase of property (section 69B r.w.s.115BBE): legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Section 69B & 115BBE provide for deeming/additions where investments or advances are unexplained or do not reflect income; explanation 2 to s.263 emphasizes AO must make necessary inquiries before allowing relief. Precedent treatment: Authorities recognizing that high-value transactions require deeper verification of source/genuineness before acceptance. Interpretation and reasoning: Although the assessee furnished MOUs/agreements and auditor confirmation and furnished interest receipts, the AO's examination was limited to receiving these replies and did not undertake further verification of source of funds or genuineness. Given the magnitude (Rs. 82.64 crores), mere receipt of s.142 replies was not treated as adequate. Commissioner correctly concluded further verification was necessary and set aside the assessment insofar as this issue. Ratio vs. Obiter: Ratio - where sizable, potentially revenue-impacting advances are accepted without substantive verification of source/genuineness, the assessment is erroneous and remand under s.263 is justified. Conclusions: Commissioner's decision to remit this issue to AO for de novo verification under detailed directions is sustained. Issue 2(f) - Concessional advances to sister concerns (interest @4% v. market 12%): legal framework, precedent treatment, reasoning, ratio/obiter, conclusion Legal framework: Transfer pricing/arm's-length and evidentiary tests; availability of interest-free funds and absence of diversion of interest-bearing funds may support commercial rate adopted; AO must examine availability of funds and commercial rationale. Precedent treatment: Reliance on prior favourable decisions in assessee's case for identical issues in earlier years (CIT(A), ITAT, High Court) was noted but AO must still record satisfaction on current facts. Interpretation and reasoning: AO examined the availability of interest-free funds and accepted that shareholders' funds exceeded exposure; AO's conclusion represented a permissible view based on evidence. Commissioner erred in setting aside the AO's finding where a legally permissible view had been taken after enquiry. Ratio vs. Obiter: Ratio - where AO has made a fact-based inquiry and adopted a permissible view on attendant facts (availability of interest-free funds, no diversion), s.263 cannot be used to substitute the Commissioner's opinion. Conclusions: Commissioner's direction to re-examine was reversed; AO's view stands. Cross-references and disposition Cross-reference: Issue 1 (jurisdiction) was applied item-wise: where AO had conducted specific enquiry and adopted a permissible legal view (gratuity, unpaid bonus, debit/credit write-offs, concessional advances), s.263 set-aside was unjustified and reversed; where AO failed to carry out necessary verification on high-value or legally sensitive items (interest to PNB Housing Finance - verification of payee's tax treatment; advances for property - source and genuineness), remand under s.263 was appropriate and sustained. Final disposition: The Commissioner's order under section 263 was partly confirmed and partly set aside in respect of the specified issues as analysed above - certain issues remitted to AO for fresh enquiry and adjudication; certain issues reinstated in favour of the assessee as AO had made adequate inquiry or adopted a permissible view.