TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 1243
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.... order, the same cannot be considered as erroneous for the purpose of section 263 of the Act; 1.3 The CIT has erred in setting aside the Assessment Order with directions to the learned AO to make a fresh assessment and examine the taxability of the following issues: * Loss on transfer of retail loan portfolio amounting to INR 65,51,06,135; * Loss on sale of loan portfolios to asset reconstruction company amounting to INR 5,62,20,992; * Service tax credit written off amounting to INR 13,88,97,251; and * Disallowance related to Derivative Sales Credit (DSC) amounting to INR 3,68,30,713 Ground no 2 On the facts and in circumstances of the case in law, the learned CIT has erred in initiating proceedings under section 263 of the Act when the original assessment order has been passed under section 143(3) r.w.s. 144C(13) of the Act on the basis of the direction of the DRP. Ground No. 3 Without prejudice to Ground nos 1 & 2, the learned CIT has erred in fact and in circumstances of the case and in law in holding that the learned AO has not verified the details pertaining to the loss on sale of retail loan portfolio amounting to INR 65,51,06,135 and, hence, the assessment ....
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....as not verified whether only unavailed credits of the year under consideration have been allowed or cumulative credits of various years has also been allowed. Ground no 6 Without prejudice to Ground nos 1 & 2 above, the learned CIT has erred in fact and in circumstances of the case and in law in holding that the learned AO has not examined the disallowance relating to DSC and, hence, the same is erroneous and prejudicial to the interest of the Revenue 6.1 The CIT erred in holding that the learned AO has not complied with the directions of the Joint Commissioner of Income-tax for verification of DSC claim of the Appellant; and 6.2 The CIT erred in holding that the learned AO has not verified the facts and the claim of the Appellant regarding the appropriate recovery of the excess DSC paid amounting to GBP 425,123 (INR 3,68,30,713) by Barclays UK Each of the grounds of appeal referred above is separate and may kindly be considered as independent of each other. The Appellant craves leave to add, alter, vary, omit, amend or withdraw the ground of appeal and to submit such statements, documents and papers as may be considered necessary either at or before the hearing of this....
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.... Effect to the directions of the DRP is given as under: 7. Adjustments made by the transfer pricing officer;- 7.1 Barclays Bank PLC had a number of international transactions with its associated enterprises. With respect to these transactions, the bank had submitted an audit report in Form No. 3CEB along with the return of income, which was forwarded to the Transfer Pricing Officer for computation of arm's length price vide letter dated 10.03.2016. The Transfer Pricing Officer has passed order under section 92 CA(3) of the Income-tax Act, 1961 dated 31sl October 2016 and made an adjustment of Rs, 83,04,bl,395. The details of adjustments are as under:- Sr. No. International Transaction T.P. Adjustment (Rs.) 1 Adjustment on account of compensation receivable for marketing of derivative products 79,73,03,514 2 Adjustment on account of compensation receivable for counter guarantees issued 1,85,22,328 3 Adjustment on account of interest on SWEEP deposits 6,83,969 4 Interest on money market loans and deposits 99,15,611 5 Coordination in respect of ECBs 40,25,973 Total 83,04,51,395 7.2 Based on the order passed by the Transfer Pricing Officer, an adju....
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....policy followed by Barclays Group. Barclays UK performs the DSC activities in the ordinary course of its business. Further, we wish to submit that Barclays India also receives from Barclays UK the DSC in relation to the origination. Coordination/liaisoning and client relationship management activities undertaken by Barclays India with client/s prospective clients in India requiring exposure in UK or other overseas markets in respect of derivative products of Barclays UK. Accordingly, Barclays India would receive as well as pay DSC to Barclays UK. The revenue in the books of Barclays UK/India is booked on the basis of Estimated DayI P&L ie difference between the value of prospective net cash flows based on the transaction price(i.e the price at which the transaction has been entered with the clients) and value of the prospective net cash flows based on market price/price at which the transaction could be hedged in the market (i.e the price based on the market parameters). Hence, there could be reversal of earlier receipt/payments identified at the time of revaluation of derivative contract (i.e marked to market valuation) undertaken by Barclays India on monthly basis or actual r....
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....oceedings initiated on this issue. 9. In view of the order passed under section 144C(1) followed by order passed under section 144C(5) of the I.T. Act 1961, total income, as provided under section 144C(13) read with section 1.43(3) of the Income Tax Act 1961 is computed and assessed as under: Particulars Amount (Rs.) Profits & Gains of Business/Profession as per Profit and Loss Account. -563,809,000 Add; Inadmissible items 5,795,104,378 Less: Admissible Items{without considering deduction under section 36(i)(vii)(a) and section 44C of the Act) -4,524,893,777 Less; Deduction under section 80 G -1,206,122 Add: Total Business Income 705,195,479 Add: As per TPO's order 83,04,51,395 Less: Derivative Sales Credit 7,484,175 Less: Deduction under section 36(1)(vii)(a) of the Act 7,35,39,865 Less: Deduction under section 44C of the Act 7,35,39,865 TOTAL TAXABLE INCOME 139,60,51,319 Rounded off to 139,60,51,319 10. Assesse accordingly u/s. 143(3) r.w.s. 14C(13) of the Income-tax Act 1961. Give credit for prepaid taxes after due verification. Charge inters u/s. 234A/234B/234C of the Act, if applicable. Computation she....
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....econstruction Companies. As these loans were purchased by the third party bank, it clearly indicates that these loans were live and recoverable and capable of earning profit. The net loss on account of transfer of the these loans of Rs. 65,51,06,124/- has been debited to the Profit and loss account as loss on disposal of assets. From the records it is seen that the assessing officer had not made any enquiry regarding the loss of Rs.65,51,06,124/- claimed by the assessee. There is no submission of the assessee on record regarding the same except the notes to the financial statements. Further, it is also noticed that the assessee has made sale of the loan portfolio business as one time basis, therefore the same is to be classified as a Slump Sale within the meaning of the proviso to sub section 1 of Section 506 of the IT Act. It is also not clear whether this amount has been included for calculation of deduction u/s. 36(i)(viia). In this regard, you are requested to furnish information as to why the same should not be treated as Slump Sale within the meaning of the proviso to sub section 1 of Section 50B of the IT Act. (ii) During the period relevant to the assessment year under co....
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....ls, production Description, Date of Sale, Amount received and Mode of Payment including the Modus Operandi. Further, he has also directed the AO to take into the consideration of the contents of the letters forwarded to him by the ITO (LT)-1(2)(2), Mumbai dated 09.11.2016 & 11. 11.2016 after verification of DSC Payment from the Form 15CA/CB filed the assessee.Ori a perusal of the draft assessment order, it is seen that although the directions in the order u/s 144A has been made a part of the draft order, no cognizance of the actual directions have been taken. The AO has not verified the claim of the assessee with cogent evidences to corroborate that:- a) The transactions in respect of the Indian clients art uallv1originated' from UK and Barclays UK 'referred' these eases to Barclay India. b) Even if it is so Barclays UK actually performed any service in respect of such clients other than merely referring, and c) Whatever services that Barclays UK performed can actually be termed as 'technical services' In view of the above findings, the whole remittance of Rs.4,43,14,888/- equivalent of GBP 5, 11,510 to Barclays UK towards Derivative Sales credit as disc....
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....o third parties claimed as Bad debts. Further the assessee has sold loan portfolio business as one time sale. The AO has not examined the nature of the said business and has simply accepted the submissions made by the assessee. The assessee has claimed deduction on loss on account of sale of loan to Asset Reconstruction Companies. The nature of such claim is not examined by the A.O. The A.O has allowed deduction u/s 37 for services tax written off without verifying the claim of assessee. The A.O has also failed to examine the incorrect claim of derivative sales credit DSC and has passed the assessment order without conducting any independent enquiry regarding the details of the above claims made by the assessee. 11.2. Further the case laws cited by assessee are not applicable to the facts of the case of the assessee as the facts are distinguishable for instance in the case of Coastal Gujarat Power Ltd 2019(103 taxmann.com 418 Bom) in the said case the there was a different interpretation of the provisions of that case whereas in the case of the assessee deductions have been claimed under various provisions of the act which has been allowed by the A.O without verifying the same. ....
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....d(2006) 156 Taxman 187(Mum)-Order passed by the AO is rendered erroneous if he initiates an enquiry but abandons same half way or does not make requisite enquiries necessary for examination of claim under relevant provisions of law or does not judicially evaluate results of enquiries, 263 was rightly invoked. 11.11. Thus, the legal contentions of the assessee against the revision u/s.263 are not tenable. 8. Thereafter ld CIT held that each of the issues of assessment have been examined in detail as to whether they are actually erroneous and prejudicial to the interest of Revenue. Thereafter he held as under :- "Issue 1: Disallowance u/s 36(1)(viia) As seen the assessee has claimed Loss on transfer of retail loan portfolio amounting to Rs 65,51,06,135/-. The sale consideration is Rs 10.08,78,26,826 and the aggregate book value (net of provisions) of such loans stood at Rs 10,74,29,32,961 resulting in a net loss of Rs 65,51,06,135. The party-wise details of sale of such loans have been tabulated as under: Particulars Name of the Party (Amount in INR) Standard Chartereded Bank (SCB) Kotak Mahiridra Bank (Kotak) No of accounts sold 9,495 3,897 Aggregate book ....
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....ken as a whole but does not include individual assets or liabilities or any combination thereof not constituting a business activity. In the case of Rohan Software Pvt. Ltd v ITO 304 ITR 314 (An (MUM) it has been held that the assessee had transferred its business including intellectual property, codes, formulae and designs, along with all the rights. However, it did not transfer all assets and liabilities pertaining to the undertaking The Hon'ble Income Tax Appellate Tribunal (Tribunal), Mumbal held that if the purchaser could carry on the business, which was carried by the seller prior to the business transfer, without acquiring all assets and liabilities of the undertaking, plea of the revenue that the seller has not sold the undertaking as a whole, is difficult to accept. The Tribunal has observed- In brief, as discussed hereinabove, "slump sale" has been defined as transfer of one or more undertakings as a result of sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales. In the instant case of the assessee, though in the purchaser's books of account the individual assets have been priced independently,....
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....by the assessee before the AO. Coupled with the fact that no valuation report has been furnished and that there is no iternised sale, it ought to have been examined by the AU whether this was one of slump sale. Nonexamination of this issue by the AU is not only erroneous but also prejudicial to the interests of Revenue. 15. Issue 3: Business Loans sold to ARC debited to P& L Account: It is observed that the assessee has sold loans to Asset Reconstruction Companies (ARC). The aggregate value of such loans in the books was Rs 20,94,91,000/-and the aggregate sale consideration of the said loan portfolio was Rs 15,32,70,000/- resulting in a net loss of Rs 5,62,21,000/. The assessee has claimed deduction of Rs 5,62,20,992/ in respect of loss on sale of loan portfolio (Omega/Vishal) in computation of total income. As per the RBI Guidelines, the said loss is to be transferred to provisions/ Reserve account and not to be debited to the profit and loss account. The A.O has not verified this aspect whether the deduction claimed by the assessee in respect of loss on sale of loan portfolio and whether the amount required to be made as provision. 16. Issue 4: Service tax credit written ....
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.... India, (b) whether Barclays UK actually performed any service in respect of such clients other than merely referring them to the assessee, (c) whatever Services that Barclays UK performed can actually be termed as "technical Services". The submissions of the assessee has been carefully perused the fact remains the assessee has not been able to substantiate with evidences that the transaction actually originated in UK for the Indian clients. Whether Barclays has actually performed any service in respect of clients are not supported by any evidences. Further A.O has not examined whether the nature of services rendered by Barclays UK can be termed as "technical services" in view of the information sent by ITO I (2)(2) regarding the allow ability of the same. The claim of the assessee that the entire excess payment OBP has been appropriately recovered from Barclays U.K barring a few samples of SWIFT messages submitted needs proper examination with evidence. 18. In light of the above facts and circumstances and after taking into consideration the written submissions made by the assessee during the course of proceedings u/s.263 of the I.T.Act, 1961 the undersigned is of the opinion th....
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....functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Principal Chief Commissioner or Chief Commissioner or Principal Director General or Director General or Principal Commissioner or Commissioner authorised by the Board in this behalf under section 120;" (d) 1.3. From the above explanation, it can be seen that the orders passed by the Assessing Officer pursuant to the directions of a superior officer can be revised under section 263 only in cases covered by clause (1) of the Explanation Ito section 263 of the Act. (e) 1.4. Further, from the Finance Act, 2009, memorandum explaining the rationale behind the insertion of section 144C of the Act by the Finance Bill, 2009 as also the Circular No. 5 of 2010 dated 3 June 2010 issued explaining the said insertion, the notes on clauses, etc., it can be seen that consequential amendments have been made to various provisions of the Act as a result of insertion of section 144C in the Act. Such consequential amendments have been made to section 13 1, section 246A and section 253 of the Act. However, no amendment is made in section 263 of the Act as a consequence of ....
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....fficer merges into the order of the higher authority (DRP) and is deemed to become an order passed by the higher authority. The principle is statutorily accepted in Section 144C(13), wherein it is provided that upon receipt of the directions issued by DRP, the Assessing Officer shall, in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the Appellant. 2.2.The power of the DRP is wide enough to even enhance the income computed by the Assessing Officer as can be seen from the Explanation to Section 144C(8) as provided below. "Explanation.-For the removal of doubts, it is hereby declared that the power of the Dispute Resolution Pane! to enhance the variation shall include and shall be deemed always to have included the power to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assesse. " 2.3. Thus, the Assessing Officer is statutorily bound to complete the assessment as directed by the DRP and has no power even to hear the assessee thereafter. In these circumstances, it is submitted that there is a complete ....
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....s to circumvent the provision of section 144C(13) of the Act. Reliance in this regard is placed on the decision of the Apex Court in the case of Supertech Limited v Emerald Court Owner Resident Welfare Association and Ors. (MANU/SC/08643/2021) wherein the Apex Court after considering various decision has in para 12 held as under - "Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [" Quando aliquidprohibetur ex directo, prohibetur etper obiiquum 7. [Copy of the Supreme Court order is attached] 3.7. The Appellant submits that if at all, the PCIT could have revised the draft assessment order passed under section 144C(l) of the Act. However, the PCIT has not revised the said order. Further, the time limit to revise the draft order had already expired when the PCIT passed the impugned order. Therefore, the Appellant submits that the order passed by PCIT is not sustainable in law. 3.8. Further, in Devas Multimedia (P.) Ltd. v. Pr. CIT [WP No. 11618 of 2016, dated 27-9-2019] (Kar) the Learned Single Judge of the Karnataka High Court held that though it may not be appropriate for the PCIT to review the decision of the DRP comprising of....
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....hort issue of whether proceeding u/s.263 of the I.T. Act can be initiated when the assessment order is passed u/s. 143(3) r.ws.144C(13) on the direction of the DRP. It was further indicated that if the Hon'ble Bench is able to come to the conclusion that this ground can be allowed, the other grounds will not be adjudicated as infructuous and that in case the conclusion is that this ground cannot be allowed then the case will be fixed for arguments to be heard in respect of the other grounds of this appeal of the assessee. Hence I am only addressing this limited legal issue. 2. The scope of sec. 263 and in particular what constitutes record before the CIT for initiating proceeding u/s. 263 had been a subject of litigation. Similarly, the issue of whether and to what extent the order passed giving effect to the appellate orders can be subjected to proceeding u/s. 263 had also been an area of litigation. 3. The amendment made to sec. 263 and the rationale for the amendment are as follows: The scope of the substitution of Explanation to section 263(1) w.e.f 1.6.1988 was explained by CBDT Circular No 528 dated 16-12-1988. What constitutes record and the issue of what constitut....
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.... Courts since then. In CIT vs Indo Persian Rugs 299 ITR 300(All) and CIT v Span International 270 ITR 538 (All), following the Apex Court decision in the case of CIT vs. Shri Arbuda Mills Ltd. (supra), it was held that power of CIT will extend to the matters not considered by the CIT(A), post amendment in 1988. 'Held In view of amendment of s. 263(1) Expln.(c) by the Finance Act, 1989, Tribunal was not justified in holding that since an appeal had been filed against the assessment order, CIT had no power to revise the order under s. 263.' 6. Similar is the decision in the case reported in 271 ITR 15 (Del) AERENS INFRASTRUCTURE & TECHNOLOGY LTD. & ORS. vs. COMMISSIONER OF INCOME TAX. This was a case where block assessment order was passed on 31.3.2004. It was held that merely because appeal was filed against block assessment order, it does not mean that proceedings u/s 263 cannot be initiated. Therefore, it does not hold that in all cases, and, particularly where the issues in the revision are different from those in the appeal, proceedings under s. 263 would be invalid during the pendency of an appeal. 7. The decisions reported in 216 ITR 548(Bom) CIT v Paul Brothers ....
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....urt can read down or struck down such statutory provision. In the present case, reading of section 263, it is crystal clear that there is no bar for the Principal Commissioner to invoke section 263 in order to examine the final assessment order passed by the Assessing Officer pursuant to the DRP decision. [Para 18] 12. It may be pointed out that the Hon'ble High Court has considered the judicial decisions holding that when a statute vests certain power in an authority to be exercised in a particular manner then the only that said authority has to exercise it and only in the manner provided in the statute itself. The Hon'ble Karnataka HC held that as regards revision of an assessment order, statute has granted that power to the CIT u/s 263 and only that authority can exercise that power in the manner indicated. The High Court has upheld the power of CIT to invoke proceedings u/s 263 in respect of order passed u/s. 143(3) r.w.s 144(C). 13. It is further submitted that when there is no other decision of any other High Court, including the jurisdictional High Court, directly on the subject, then the decision of the High Court on the issue has to be followed by the ITAT. Rel....
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....nces of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation 1.-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed [ on or before or after the 1st day of June, 1988] by the Assessing Officer shall include (i) an order of assessment made by the Assistant Commissioner [or Deputy Commissioner] or the Income tax officer on the basis of the directions issued by the [Joint] Commissioner under section 144A. (ii) an order made by the [Joint] Commissioner in exercise of the powers or in the performance of the functions of an Assessing officer conferred on, or assigned to, him under the orders or directions issued by he Board or by the [Principal ] Chief Commissioner or] Chief Commissioner or[Principal Director General or] Director General or[ Principal Commissioner or] Commissioner authorized by the Board in this behalf under section 120. (b) "record" [ shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the [Principal [Chi....
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....o section 13 1, section 246A and section 253 of the Act. That however, no amendment is made in section 263 of the Act as a consequence of insertion of section 144C of the Act to deem such orders being capable of being revised. That therefore, the memorandum, circular, etc. support the Assessee's stand that once the Assessing Officer passes an order in accordance with the Directions issued by a superior authority (being DRP) the same cannot be revised by the CIT under section 263 of the Act. The above submission has sufficient cogency as our following discussion will further oxygenate the same. 17. It will also be gainful to refer to the provision of section 144C dealing with the reference to DRP (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, ....
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....assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee.] (9) If the members of the Dispute Resolution Panel differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members. (10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 [or section 153B], the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in whi....
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.... received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. Further, the provisions of sub-section (7) of section 144C empowers the DRP to make any further enquiry or cause any further enquiry to be made by the Income-tax authority as it thinks fit. Explanation to sub-section (8) of section 144C duly provides that DRP has power to enhance the variation and the power includes to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee. Section 144C(13) provides that upon receipt of the directions issued by DRP, the Assessing Officer shall, in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the Appellant. As noted above, it is now nobody's case that the Assessing Officer has not followed the direction of the DRP and completed the assessment not in conformity with the direction of the DRP. Therefore, the final Assessment order cannot be said to be erroneous. In fact, if the Assessing Officer had made any addition....
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.... the Ld.CIT to the AO to pass an order by-passing the provisions of passing the draft assessment order is also not sustainable in law. 20. Now, we examine the constitution of DRP. As evident from the above, the DRP constitutes a collegium comprising of three Principal Commissioners or Commissioners of Income-tax, the directions given by them is binding upon by the AO. Hon'ble Bombay High Court in the case of Vodafone India Services Pvt.Ltd. vs Union of India & Others 2013 SCC online Bom 1534 has expounded upon the proceedings at DRP as under:- "The proceeding before the DRP is not an appeal proceeding but a correcting mechanism in the nature of a second look at the proposed assessment order by high functionaries of the revenue keeping in mind the interest of the assessee. It is a continuation of the Assessment proceedings till such time a final order of assessment which is appelable is passed by the Assessing Officer. This also finds support from Section 144C(6) which enables the DRP to collect evidence or cause any enquiry to be made before giving directions to the Assessing Officer under Section 144C(5). The DRP procedure can only be initiated by an assessee objecting to the d....
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....was in connection with the writ petition filed by the assessee, where assessee has objected to the notice issued u/s. 263 of the Act. Furthermore, Hon'ble High Court has expounded that writ court cannot examine the validity of notice on merits. Furthermore, the said decision has distinguished following decision of Hon'ble Bombay High Court, i) Vodafone Services Pvt.Ld.(supra) wherein Hon'ble Bombay Court has expounded that proceedings before the DRP is not an appeal proceedings, but correction mechanism in the nature of a second look at the proposed assessment order by high functionaries of revenue (ii)Vodafone India Services Pvt.Ltd. vs. Union of India (2014) 368 ITR 1(Bom.). In the present case, this Tribunal is under the jurisdiction of Hon'ble Bombay High Court. Hence, we do not have any authority whatsoever to deviate from the exposition of the Hon'ble jurisdictional High Court that the proceedings at DRP is not an appeal proceedings, but a correcting mechanism. Furthermore, the ratio from the Hon'ble Bombay High Court in the case of Virendra Kumar Jamb(supra) also support this view. Hence, the submission of Ld. DR that subject under discussion here has not been subject matter....