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2023 (3) TMI 30
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.... 263 of the Act is perverse, arbitrary, non-speaking, bad in law and without jurisdiction. 2. Under the fact and circumstances of the case and in law, the Ld. PCIT, Udaipur has erred in passing the impugned Order without providing an adequate opportunity of being heard. 3. Under the facts and the circumstances of the case and in law, the PCIT, Udaipur has grossly erred in holding that the Assessing Officer has failed to make proper enquiry without appreciating that specific query was raised in the assessment proceeding on the issues of: * Computation of disallowance of expenditure u/s 14A of the Act and * Deduction of employee's contribution for the purpose of Section 36(1)(va) of the Act 4. Under the facts and the circumstances of the case and in law, PCIT Udaipur has grossly erred in passing order u/s 263 of the Act in respect of issues for which reasonable and plausible view was taken by Ld. AO considering judicial precedents and sufficient material available on record. 5. Under the facts and circumstances of the case and without prejudice to ground no. 1 to 3 above, the Ld. PCIT was not justified and has grossly erred in....
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....he relevant fund beyond the prescribed due dates under the relevant Acts and thus were disallowable u/s 36(1)(va) r.w.s. 2(24)(x) of the Income Tax Act. Particular Amount Collected from employees (in Rs.) Due date of depositing Actual date of deposit PF 87,093 15.07.2016 19.07.2016 PF 1,01,548 15.01.2017 20.01.2017 ESI 11,261 21.09.2016 18.11.2016 ESI 11,742 21.10.2016 18.11.2016 ESI 20,037 21.01.2017 23.01.2017 Total 2,31,681/- Thus, the above amount of Rs. 2,31,681/- was required to be disallowed u/s 36(1)(va) of the Act which was not done by the Assessing Officer while passing the assessment order u/s 143(3) of the Act. No such disallowance was made by the Assessing Officer while passing the assessment order. Based on the above observations she stated that the assessment order passed u/s 143(3) of the IT Act 1961 in the case of the assessee company for the assessment year 2017-18 completed on 14.12.2019 is erroneous and prejudicial to the interest of revenue. 5. Based on the said findings a show cause notice u/s. 263 of the Act was issued by the PCIT on 26.02.2022 to the as....
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.... (1) The 67[Principal Chief Commissioner or Chief Commissioner or Principal Commissioner] or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. 4. From the bare perusal of provision of Section 263 of the Act, it is evident that the expression "erroneous" as stipulated under Section 263(1) of the Act, means 'involving error', 'deviating from the law'. Thereby, meaning that the order cannot be termed as erroneous unless it is not in accordance with the law. An Assessment order may be termed as erroneous in so far as it is prejudicial to the interest of revenue, only when in the opinion of Chief Commissioner or Principal Commissioner or Commissioner: i. the order is....
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....pport of the calculation of disallowance made of Rs. 1,20,000/- u/s 14A of the Act, giving proper justification for apportionment of expenditure attributable to earning exempt income. 8. Accordingly, based upon the detailed justification along with the supporting documents given by the Assessee with respect to both the issues for which independent inquiry was conducted and after making adequate examination of the same by the Ld. AO, the scrutiny assessment was completed by order u/s 143(3) of the Act dated 14.12.2019 wherein no further disallowance was made u/s 14A of the Act, as interest cost on borrowed funds was not attributable to earning exempt dividend income and also deduction for employee's contribution u/s 36(1)(va) of the Act, deposited before due date of filing return of income was duly allowed/accepted. 9. Thus, it is evident that the Ld. AO has conducted sufficient inquiry for the issues against which your goodself is exercising its revisionary power. Thus, no revision proceedings u/s 263 could be initiated for the Assessment Order in the present case as it has been passed after making proper enquiries and verification and after taking a plausible vie....
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....nvited to judicial precedents: Commissioner to Income-tax v. Gabriel India Ltd [1993] 71 Taxman 585 (Bombay) From a reading of sub-section 1 of section 263, it is clear that the power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the ITO is 'erroneous insofar as it is prejudicial to the interests of the revenue'. It is not an arbitrary or unchartered power. It can be exercised only on fulfilment of the requirements laid down in sub-section (1). The consideration of the Commissioner as to whether an order is erroneous insofar as it is prejudicial to the interests of the revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are al....
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.... courts but only by an appropriate agency. Commissioner of Income Tax vs. Paul Brothers (16.10.1992 - BOMHC), Income-tax Reference No. 358 of 1987, MANU/MH/0244/1992 MANU/MH/0244/1992 5. The Calcutta High Court in the case of Russell Properties Pvt. Ltd. v. A. Chowdhury, Addl. CIT MANU/WB/0144/1976 : [1977]109ITR229(Cal) and the Allahabad High Court in K. N. Agrawal v. CIT [1991] 189 ITR 769 have held that where the Income Tax Officer's order is passed on the basis of a binding decision, revisional power under section 263 cannot be exercised to undo the said order. The Income Tax Officer is a quasi-judicial authority and the principle laid down is sound. We endorse the same. 17. In view of the above, no revision u/s 263 of the Act is warranted on this ground also. Taking different view cannot be termed as erroneous: 18. In this context, it is humbly submitted that the view taken by the Ld. AO during scrutiny assessment was after relying upon the settled jurisprudence of provision of Section 14A of the Act, and Section 36(1)(va) of the Act as well as supporting documents submitted by the Assessee. 19. The Assessing officer has taken a....
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....s account wherein out of the amount of Finance Cost of Rs. 13,99,651/-, the amount of Rs. 7,20,412/- is paid as interest for cash credit limits from various banks and amount of Rs. 6,73,928/- is towards bank charges. 23. Further, it is imperative to bring to your kind attention that as far as bank charges of Rs. 6,73,928/- is concerned, the same being common expense has been considered by the Assessee for disallowance u/s 14A of the Act at Rs.5,347/- calculated as per its detailed working submitted during assessment. The copy of the same is enclosed as Annexure___ for your ready reference. However, expenditure of Rs. 7,20,412/- is a specific expense have been used for the business purposes only and is not attributable for earning any exempt dividend income. Therefore, no disallowance is warranted. 24. Accordingly, being satisfied with the basis of computation of disallowance u/s 14A, the Ld. AO has taken plausible view on allowability of the same which is legally allowed as it is usual that interest free funds would be first utilized for investment rather borrowed funds. The reliance in this context is placed on binding judicial precedents in support of the conten....
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....r Ltd. [2009] 313 ITR 340/178 Taxman 135 (Bom.) to hold that where interestfreefunds available with an Assessee are sufficient to meet its investment then it shall be presumed that the investments have been made from interest-freefunds available and not out of borrowed funds. Thus, holding that disallowance of partial interest paid on loan taken by the Respondent-Assessee, was not justified. 25. The view taken by the Ld. AO, in view of the aforesaid facts and circumstances and having regard to judicial precedents discussed above, is not erroneous as well as prejudicial to interest of revenue as the Ld. AO has taken legally justifiable view on the issue of disallowance u/s 14A of the Act. In other words, having satisfied with the method adopted by the Assessee in determining the expenditure incurred on the exempt dividend income, as well as correctness of the claim of the Assessee and further in utmost regard to the settled jurisprudence of provision of Section 14A of the Act, the Ld. AO after making a detailed inquiry has not disputed the working related to the disallowance of Rs. 1,20,000/- made by the Assessee. Accordingly, Rule 8D of Income Tax Rules, 1962 has no applic....
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....ncing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year beginning on or before the 1st day of April, 2001. 28. The correctness of the claim of the Assessee for the purpose of Section 14A read with Rule 8D is further supported from the fact that no expenditure in the nature of interest expenditure was incurred for earning exempt income as interest free funds were available with the Assessee, which was duly explained and submitted during assessment proceedings. 29. Without prejudice to the above, it is humbly submitted that beside the fact that the Assessing Officer has conducted the detailed inquiry with respect to the specific issue of disallowance u/s 14A of the Act, the Assessee has submitted various documentary evidences such as breakup of Finance Cost, Investment sheet, on perusal of the same, it is established that interest cost of Rs. 7,25,723/- have no bearing on exempt dividend income of the Assessee. Accordingly, there is no deviation for correctness of claim made by Assessee. 30. In view of above, from the face of documentary evidence submitted during....
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.... of power u/s 263 of the Act. 35. In view of the above, it is evident that the order passed dated 14.12.2019 is not erroneous as well as prejudicial to interest of revenue, as the order passed by the Ld. AO is in light of the binding decision of Hon'ble Courts and on verification/examination of facts. Therefore, proposed revision proceeding is prayed to be dropped by your goodself. In any case, opportunity of being heard may kindly be provided to the Assessee before taking any adverse action against the Assessee." 6. From the reply of the assessee in the proceeding before her, she stated that the she has considered the facts of the case, written submissions along with enclosures filed by the assessee. She further stated the contentions raised by the assessee is not tenable. The issue of disallowance to be made u/s. 14A of the Act is not disputed by the assessee and has disallowed the amount but in the assessment proceedings a query letter issued by the Assessing Officer. Though the assessing officer show caused for making disallowance as per Rule 8D of the Income Tax Rules, but did not conduct proper verification whether the amount or disallowance made by the a....
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....lanation (2) clause (b) and clause (a) of section 263 of the income tax act. Thus, both issues have remained unverified and required examination. Hence, assessment order u/s 143(3) of the I.T. Act for the A.Y. 2017-18 dated 14.12.2019 is erroneous and prejudicial to interest of revenue. The same is therefore set-aside to the file of AQ, with the direction to pass fresh assessment order after conducting proper verification and enquiries on the above issues as directed in earlier paragraphs of this order and based on outcome of such enquiries and verification, he is directed to take appropriate action as per law. However, the AO is directed to ensure that reasonable opportunity of being heard is accorded to the assessee before passing the order." 7. Aggrieved from the said order of the ld. Pr. CIT the assessee carried the matter in appeal before us challenging the order passed u/s. 263 of the Act. On merits the ld. AR appearing on behalf of the assessee submitted a detailed written submission and the same is extracted here in below: "1. The Appellant is private limited company engaged in the production of grinding media and various casting product. The Appellant for the y....
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....cedent of Jurisdictional High Court on the relevant issues under consideration. 5. Further with respect to the query raised against the disallowance u/s 14A of the Act, the Appellant submitted detailed working note duly justifying the disallowance of Rs. 1,20,000/- made by the Appellant u/s 14A of the Act in respect of common and other administrative expenditures incurred also in relation to earning exempt income. The said working note was duly verified by the Ld. AO during the assessment proceedings and having regard to proper allocation of expenses attributable to earning exempt income and appreciation of the fact that no borrowed funds were utilized for investment, the Ld. AO accepted the claim of suo-moto disallowance made Assessee after due verification of working submitted with relevant documents submitted. 6. After due verification of records and having regard to well settled judicial precedents, the Ld. AO passed the assessment order on 14.12.2019 in accordance with the applicable law. 7. Thereafter, the Ld. the Principal Commissioner of Income tax (PCIT), Udaipur without any inquiry or verification or examination and against the records, consider....
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.... how the order dated 14.12.2019 is erroneous for invoking provision of Section 263 of the Act. The said reply forms part of the paper book and is available at page no. 49-63 of said paper book. 11 Thereafter, the Ld. PCIT without appreciating the documentary evidences placed on record and without appreciating that Ld. AO conducted due inquiry and verification, passed the Order u/s 263 of the Act on 26.03.2022("Impugned Order" for short) by allegedly concluding that the order passed by the Ld. AO is erroneous in so far as prejudicial to the interest of the revenue as per provision contained under Section 263 of the Act and directed the Ld. AO to make a fresh assessment after conducting proper enquiries. 12 In the Impugned Order, the Ld. PCIT proposed the following disallowance as against the law applicable for the assessment year under consideration: * Disallowance as per Rule 8D amounting to Rs. 7,07,227/- after wrongly taking interest expenditure into consideration despite the fact no such expenditure was incurred for earning exempt income * Disallowance of Employee's contribution for Rs. 2,31,681/- u/s 36(1)(va) of the Act, though the ....
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....cial to the interest of the revenue. 17. The expression "erroneous" has not been defined in the Act. However, Black's Law Dictionary defines the word "erroneous" to mean "involving error, deviating from the law. "Erroneous assessment refers to an assessment that deviates from the law and is, hence, invalid. The erroneous assessment pertains to a defect, which is jurisdictional in nature. 18. Further, an order cannot be termed erroneous unless it can be shown to be an order, which is not in accordance with law. If the Ld. AO, acting in accordance with law, makes certain assessment, the same cannot be termed as erroneous by the Ld. PCIT merely because revenue wants assessment to be in different manner. In this context, reliance is placed on following judicial pronouncement: * NABHA INVESTMENTS (P.) LTD. V. UNION OF INDIA [2000] 112 TAXMAN 465 (DELHI) * Commissioner of Income-tax vs. Gabriel India Ltd. [1993] 71 Taxman 585 (Bom.) * J.P. Srivastava & Sons (Kanpur) Ltd. vs. Commissioner of Income-Tax {1978] 111 ITR 326 (ALL.) * 19. In light of the above, the Appellant humbly submits that during the assessment proceedings....
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....T has exercised its power u/s 263 of the Act by invoking Explanation 2 clause(a) and clause(b) of the Section 263 of the Act. At the outset, it is humbly submitted that Ld. PCIT has directly invoked the clause (a) and (b) of Explanation 2 to Section 263, (though the same are not applicable) in its Impugned Order, the same was not part of the show cause notice issued during the proceedings. 24. In this context, relevant extract of Explanation 2 of Section 263 of the Act is reproduced herein below for ready reference: Section 263: Revision of orders prejudicial to revenue. (1) The "[Principal Chief Commissioner or Chief Commissioner or Principal Commissioner] or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer for the Transfer Pricing Officer, as the case may be, is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including- ....
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....hief Commissioner or Chief Commissioner Principal] Commissioner or Commissioner, - (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. 25. From the bare perusal of the aforesaid section, it is evident that for exercising power u/s 263 of the Act by taking resort to clause (a) and (b) of Explanation 2 to said Section, it is necessary that the case of the Assessee falls under any of the clauses (a) to clause(d) of Explanation 2 to Section 263 of the Act, which is entirely not applicable in case of Appellant, as explained herein below: Non-Applicability of Clause (a) of Explanation 2 to Section 263 of the Act 26. From the bare perusal of clause (a) of Explanation ....
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....w of the above, the Ld. PCIT was not justified in arbitrarily holding that her action are supported by clause (a) of the Explanation 2 to Section 263 of the Act. Non Applicability of Clause (b) of Explanation 2 to Section 263 31. As far as invoking clause (b) of Explanation 2 to Section 263 is concerned, in this regard it is submitted that said clause is also not applicable to the assessment order passed by Ld. AO as the same have very limited applicability to the extent if the Assessment Order passed by the Assessing Officer is without inquiring into the claim of the Appellant. 32. As stated above the claim of the Appellant with respect to the issue of disallowance u/s 14A of the Act and deduction u/s 36(1)(va) of the Act was duly enquired by the Ld. AO vide query notice u/s 142(1) of the Act dated 07.11.2019 issued during assessment proceedings. Therefore, resort to clause (b) of Explanation 2 to Section 263 of the Act, taken by the Ld. PCIT is not legally tenable. 33. That, the very basis on account of which the Ld. PCIT has directly taken resort of clause (a) and clause (b) of Explanation 2 to Section 263 of the Act is mentioned as under in t....
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....essing Officer is erroneous prejudicial to the interest of Revenue. The CIT himself has to undertake some enquiry to establish that the assessment order is erroneous and prejudicial to the interest of Revenue..... 37. Without prejudice to the above, it is submitted that as per the mandate under the law, the Ld. PCIT before invoking provision of Section 263 of the Act, needs to conduct adequate inquiry so as to justify that the case of the Assessee is fit case for exercising revisionary power u/ s 263 of the Act. In the present case without conducing any inquiry and verification of records, the Ld. PCIT directly came to conclusion and passed the Impugned Order. 38. There was no independent inquiry conducted by the Ld. PCIT on both the issues against which the Ld. PCIT has exercised its revisionary power u/ s 263 of the Act. With respect to the disallowance u/ s, 14A of the Act is concerned, there was no independent inquiry conducted by Ld. PCIT on verifiable facts whether the investment made is from borrowed funds or surplus own funds/interest-free funds, before concluding that the interest expenditure is attributable to earning exempt dividend income. With respect....
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....tood so as to understand what can be classified as 'prejudicial to the interests of revenue'. As the said phrase hasn't been defined under the law, legal precedents may be perused regarding the same. Some relevant extracts have been reproduced hereunder for ready reference: The judgement of Delhi High Court in the case of P.C. Puri v. CIT [1984] 18 Taxman 158 (Delhi) [23.02.1984] Though not defined, the term 'prejudicial to the interests of the means that the lawful revenue due to the State has not been realised. [Para 6] 43. Thus, in view of the above all the submissions made, it is evident that detailed inquires and requisites notices as prescribed by law have been issued to the Appellant by Ld. AO, in response to which necessary documents have been furnished by the Appellant during the assessment proceedings which have been examined and verified by AO. Further, the issues under consideration are also not prejudicial to the interests of revenue as the same is merely a change of opinion. Thus, the case of the Appellant neither falls within the ambit of the "erroneous" nor in so far as "prejudicial to the interest of revenue" as mentioned ....
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.... the extended due date of the respective Act, and before due date of filing return of income is allowable deduction, considering the binding decision of jurisdictional High Court. Merely because amendment are brought upon by the Finance Act, 2021 u/ s 36(1)(va) of the Act, which are unforeseen, and is also not applicable for the year under consideration, the plausible view taken by the Ld. AO cannot be said to be prejudicial to the interest of revenue. Besides this the plausible view taken by the Ld. AO with respect to the disallowance made by the Appellant u/ s 14A of the Act, because correctness of suo-moto disallowance was not disputed having regard to nature of accounts of the assessee, rule 8D is not automatically applicable. Accordingly, the Assessment Order cannot be said to be prejudicial to the interest of revenue. 48. It is further submitted that the case of the Appellant is squarely covered by various judicial pronouncements wherein on the similar issue jurisdiction of the Ld. PCIT u/s 263 of the Act was not upheld and order u/s 263 of the Act was set aside. The excerpts of some of these judgments are mentioned herein below, which is relied upon by the Appellant....
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.... in the assessment proceeding on the issues of: * Computation of disallowance of expenditure u/s 14A of the Act * Deduction of employee's contribution for the purpose of Section 36(1)(va) of the Act. FACTS: The relevant facts of the ground under consideration has been stated in Brief Facts in initial paras of this submission and the same are not repeated for the sake of brevity. Findings or Allegations of Ld. PCIT: 1. I hold that the order passed by the Assessing Officer u/s 143 (3) of the IT Act, 1961 dated 14.12.2019 for AY 2017-18, is erroneous in so far it is prejudicial to the interest of revenue. 2. as the said order has been passed by the Assessing Officer in a routine and perfunctory manner 3. without verifying the amount of disallowance u/s 14A of the IT Act and not verifying the quantum of the allowance to be made u/s 36(1)(va). SUBMISSIONS 54. At the very outset, it is humbly submitted that Ld. PCIT is factually and legally incorrect to hold that Ld. AO did not make inquiry or verification as required under the law. As stated above, the Ld. AO during the course of assessment proceeding e....
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....s reproduced herein below for ready reference: Notice dated 07.11.2019 2. Provide why the employee contributions received for PF fund and ESI fund but deposited to the respective fund after due date should not be treated as your income for AY 2017-18 as per the provisions of section 36(1)(va). 3. Provide if any disallowance has been made in the ITR for expenditure incurred for eaming exempt income. If yes, provide a working note on the same and if not, justify why disallowance should not be made as per the provisions of section 14A of the Act and Rule 8D. 58. In response to the query raised, the Assessee submitted its reply dated 10.12.2019 (copy of which is available at page no. 29-34 of PB) wherein Assessee submitted detailed justification with respect to both the query raised by the Ld. AO which is also duly supported from the verifiable documentary evidence submitted as well as binding judicial precedent as far as the claim of allowability of the same is concerned. 59. In view of the above, the Ld. PCIT had no jurisdiction to initiate the revisionary proceedings when the Ld. AO has already framed an opinion on the given facts, that too suppor....
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....s claimed by the assessee and the same has not been negated in the final order, it simply implies that the Assessing Officer concurs with the claim made by the assessee and thus, no disallowance has been made in this regard. The said contention of Appellant is substantiated by following judicial precedents: Commissioner of Income Tax Vs. Nirma Chemicals Works P. Ltd. (2009) 222 CTR 593 (Guj) [04.02.2008], Rayon Silk Mills Versus Commissioner of Income-Tax. (1996) State Bank of India vs. Assistant Commissioner of Income tax and Ors. [2019] 411 ITR 664 (Bom) [15.06.2018] 63. In view of the above, Ld. PCIT was not justified in exercising jurisdiction u/s 263 of the Act against the Appellant on factually and legally inconsistent findings and allegations. WITHOUT PREJUDICE TO ABOVE, COUNTER SUBMISSION ON THE FINDINGS AND ALLEGATION OF THE LD. PCIT ARE MADE AS FOLLOWS: 64. The Ld. PCIT alleged that "I hold that the order passed by the Assessing Officer u/s 143 (3) of the IT Act, 1961 dated 14.12.2019 for AY 2017 18, is erroneous in so far it is prejudicial to the interest of revenue as the said order has been passed by the Assessing O....
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....ply filed dated 16.03.2022 in response to show cause notice 26.02.2022 has skipped the Ld. PCIT attention. In the reply, the Appellant has abundantly explained as to how Section 14A read with rule 8D is not applicable in the present case, as the Ld. AO while framing the Assessment was duly satisfied with the claim of disallowance made by the Appellant and accordingly, no further disallowance u/s 14A r.w. Rule 8D is warranted. In this regard reference is invited to Para NO. 25 to Para No. 29 of reply dated 16.03.2022 is reproduced herein below for your ready reference. 25. The view taken by the Ld. AO, in view of the aforesaid facts and circumstances and having regard to judicial precedents discussed above, is not erroneous as well as prejudicial to interest of revenue as the Ld. AO has taken legally justifiable view on the issue of disallowance u/s 14A of the Act. In other words, having satisfied with the method adopted by the Assessee in determining the expenditure incurred on the exempt dividend income, as well as correctness of the claim of the Assessee and further in utmost regard to the settled jurisprudence of provision of Section 14A of the Act, the Ld. AO after mak....
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....s Act: Provided that nothing contained in this section shall empower the Assessing Officer either to reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year beginning on or before the 1st day of April, 2001. 28. The correctness of the claim of the Assessee for the purpose of Section 14A read with Rule 8D is further supported from the fact that no expenditure in the nature of interest expenditure was incurred for eaming exempt income as interest free funds were available with the Assessee, which was duly explained and submitted during assessment proceedings. 29. Without prejudice to the above, it is humbly submitted that beside the fact that the Assessing Officer has conducted the detailed inquiry with respect to the specific issue of disallowance u/s 14A of the Act, the Assessee has submitted various documentary evidences (Kindly make reference to the Paper Book) such as breakup of Finance Cost, Investment sheet, on perusal of the same, it is established that interest cost of Rs. 7,25,723/- have no bearing on exempt divide....
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....t, proportionate common expenditure including Bank Charges as attributable for earning exempt dividend income were suo-moto disallowed by the Appellant as per working submitted during assessment proceedings which is available in Paper book at page no. 36 of paper book. 73. The said working is reproduced herein for ready reference: Castamet Works Private Limited Financial Expenses 2016-17 Disallowance of Expenses U/S 14 A 74. Along with the aforesaid working (PB No. 36), the Appellant also submitted the detailed working of source of each investment made by Appellant (PB No. 37), which along with bank statement submitted during assessment as well as revisionary proceedings (PB No. 39, 40), which duly establishes that Ld. AO has taken correct view for being satisfied with the Appellant's contention that interest charges is not attributable to any business income. For ready references, the relevant pages are reproduced herein for ready reference: 75. From the bare perusal of the aforesaid documentary evidences, it evident that investments were made out of internal accruals only and interest charges were not attributable to exemp....
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....bove. 78. The submissions in this ground of appeal are divided in following paras Issue of disallowance u/s 14A of the Act Issue of deduction u/s 36(1)(v) of the Act View taken by Ld. AO is based on binding judicial precedents and plausible view in accordance with law Issue of disallowance u/s 14A of the Act 79. It is humbly submitted that all the investment are made by the Assessee for earning exempt dividend income were from surplus own funds/interest free funds only, which is evident from bare perusal of bank statement and detailed chart explaining the utilization of funds(PB No. 39-44 and. 80. It is submitted that the Finance Cost being interest expenditure of Rs. 7,20,412/- have no nexus/relation in whatsoever manner with the exempt dividend income of the Appellant earned from investment in equities and Mutual Therefore, as per working submitted by Appellant during assessment proceedings, these were not considered for the purpose of disallowance u/s 14A of the Act as these expenditure are incurred purely for business purpose and not for making investments. 81. Accordingly, being sat....
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....5. In view of the above, no further disallowance was required as against the suo-moto disallowance made by the Appellant, which Ld. AO has accepted in view of forgoing judicial precedents and basis facts on record, which clear establishes that no borrowed funds were utilized for making investment in mutual fund/securities. Issue of deduction u/s 36(1)(v) of the Act 86. It is humbly submitted that view taken by the Ld. AO that depositing the employee contribution before due date of filing return of income is allowable deduction u/s. 36(1)(va) of the Act, is well supported by decision rendered by the jurisdictional High Court in the case of CIT VS Rajasthan State Beverage Corpn. Ltd. [2017] 84 taxmann.com 185(SC). 87. In view of the above, claim of deduction u/s 36(1)(v) of the Act is duly allowed to Appellant by the Ld. AO while passing assessment order. 88. Thus, it is evident that the Ld. AO has passed the assessment order with respect to both the issues after taking into consideration the jurisprudence of the respective section as interpreted by various Hon'ble Courts, which are binding upon the lower authorities. The said plausible a....
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....nable. In this context relevant extract of clause (2) of Section 14A of the Act is reproduced herein below for your kind perusal: Section 14A: Expenditure incurred in relation to income not includible in total income. (2) The Assessing Officer shall determine the amount of expenditure incurred in relation to such income which does not form part of the total income under this Act in accordance with such method as may be prescribed, if the Assessing Officer, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under this Act. 94. From bare perusal of the said section it is evident that the Section 14A(2) of the Act is applicable only if the Assessing Officer is not satisfied with the correctness of claim of the Assessee. In the present case the Ld. AO was duly satisfied with the correctness of the claim of the Assessee which is evident from the Assessment Order dated 14.12.2019 passed u/s 143(3) of the Act, wherein no negative inference has been drew by the Ld. AO. The said action of the Ld. AO is duly support....
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....enditure done u/s 14A of the Act. Accordingly, having satisfied with the correctness of the claim of the Appellant, the Assessment of the Appellant was completed by order dated 14.12.2019. Accordingly, rule 8D is not applicable in the case of the Appellant, which view has been taken by Ld. AO plausible on plain reading of the provision of Section 14A of the Act. The said interpretation is also justified in view of following judgments: Maxopp Investment Ltd. v.Commissioner of Income Tax, New Delhi [2018] 91 taxmann.com 154 (SC) Principal Commissioner of Income Tax-2 v. Bombay Stock Exchange Ltd [2020] 113 303 (Bombay) * Shringar Marketing (P.) Ltd. v. Principal Commissioner of Income-tax-4, Kolkata [2021] 128 taxmann.com 199 (Kolkata Trib.) (Supra) Direction to the Assessing Officer to verify and examine and finalize the assessment in accordance with the prevailing law;. 97. The Appellant vehemently objects to the direction being given by the Ld. PCIT to the Assessing Officer for framing de-novo assessment in the case of the Appellant because of the reason that the Assessment of the Appellant was completed as per the law applicable during....
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....sment made by Ld. AO is in accordance with applicable law, which is also supported from the settled jurisprudence set by the binding decision of Jurisdictional High Courts. 100.2. Arvee international v/s Addl. CITItat, Mum) 101 ITD 495, and Seshasayee Paper & Boards Ltd[2000] 242 ITR 490(Mad.). 100.3. CIT vs. Raison Industries Ltd. 288 ITR 322(SC). In the present case the Ld. PCIT failed to establish as to how the carlier order of Ld.AO was prejudicial to the revenue, as the order dated 14.12.2019 was passed having regard to the settled law as well as binding decision of the Hon'ble Court. Merely a second thought of the Ld. PCIT to deal with the issue differently does not give him the right to exercise power u/s 263 of the Act and cannot termed the order prejudicial to the interest of revenue. Thus, reliance placed by Ld. PCIT on this judgment is totally misconceived. 101. In view of the above, it is humbly submitted that the observations of the Ld. PCIT is factually and legally incorrect and the order of the Ld. AO is neither erroneous nor prejudicial to the interest of revenue. Accordingly, it is requested to set aside the Impugned....
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....assed by the Assessing Officer without application of mind as such will be erroneous and prejudicial to the interests of the revenue." [Para 9] 1-6 Erroneous 2. Nabha Investments (P.) Ltd. V. Union of India [2000] 112 Taxman 465 (Delhi) [24.07.2000] It is not necessary that every order passed by the Assessing Officer, which may result in loss of revenue, is to be treated as an erroneous order in as much as it is prejudicial to the interests of the revenue. An order is erroneous if the view taken by the Assessing Officer is not in accordance with law. If an order is in accordance with law, the decision of the ITO cannot be regarded as erroneous merely because in the opinion of the Commissioner it should have been made or written in a different manner. [Para 16] 7-14 3. Commissioner to Incometax v. Gabriel India Ltd. [1993] 71 Taxman 585 (Bom.)[15.04.1993] We may now examine the facts of the present case in the light of the powers of the Commissioner set out above. The ITO in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given detailed explanation in that regard by a letter in writin....
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....de. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant.[Para No. 20] 37-48 7. Torrent Pharmaceuticals Ltd. v. Deputy Commissioner of Income-tax, Circle-4(1)(2), Ahmedabad [2018] 97 taxmann.com 671. (Ahmedabad - Trib.) However, in the same vain where the preponderance of evidence indicates absence of culpability, an onerous burden cannot obviously be fastened upon the AO while making assessment in the name of inadequacy in inquiries or verification as perceived in the opinion of the Revisional Authority. It goes without saying that the exercise of statutory powers is dependent on existence of objective facts. The powers outlined under section 263 of the Act are extraordinary and drastic in nature and thus cannot be read to hold that an uncontrolled, unguided and uncanalised powers are vested with the competent authority....
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....formity of the Central Board of Direct Taxes Circular No. 9 of 2014 but the Assessing Officer failed to do so. Therefore, the order of the Assessing Officer is erroneous insofar as prejudicial to the interests of the Revenue". 11. In the considered view of the court, this can hardly constitute the reasons required to be given by the Principal Commissioner of Income-tax to justify the exercise of jurisdiction under section 263 of the Act. In the context of the present case if, as urged by the Revenue, the assessee has wrongly claimed depreciation on assets like land and building, it was incumbent upon the Principal Commissioner of Income-tax to undertake an inquiry as regards which of the assets were purchased and installed by the assessee out of its own funds during the assessment year in question and, which were those assets that were handedover to it by the DMRC. That basic exercise of determining to what extent the depreciation was claimed in excess has not been undertaken by the Principal Commissioner of Income-tax. [Para 10 and 11] 83-86 10. Sh. Sanjay Jain vs The PCIT, (Central) Ludhiana, ITA No. 140/CHD/2021 9.7.........Accordingly, we hold that the ....
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....tion with the company in which investment has been made and also there was a business income to the assessee from the same. He notes that the Assessing Officer, therefore did not consider the calculation of disallowance under section 14A the interest expense debited by the assessee because the same has been incurred for the purpose of business. The PCIT though was unhappy with the view of the Assessing Officer, the PCIT himself does not say why it should have been considered for the calculation of disallowance under section 14A. Even if one assumes that he has, after reading of the order expressed his views, but still the position is two views therefore were possible. Therefore, if one of the two possible views was taken by the Assessing Officer, the PCIT could not have exercised his powers under section 263 of the Act. [Para No.7] 131-136 14. Commissioner of Income Tax, Bangalore v. Chemsworth (P.) Ltd. [2020] 119 taxmann.com 358 (Karnataka The Assessing Officer in the order of assessment is not required to give detailed reasoning in respect of each and every item of deduction and, therefore, the question whether there has been an application of mind before allow....
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....y scrutinise the above aspects does not give powers to the ld. CIT to revise the assessment u/s 263 of the Act. Making rowing enquiries is not a finding of an error. Assessments cannot be set aside for fresh enquiries unless a specific error is pointed out at not making proper enquiry cannot be equated with no enquiry. In view of the above we quash the order passed u/s 263 of the Act and allow the appeal of the assessee. [Para No. 17] 145-156 No 263 on incorrect factual and legal position 16. Vijay Kumar Megotia* v. Commissioner of Income-tax [2010] 195 TAXMAN 63 (PAT.)(MAG) The Commissioner had cancelled the assessment order on the ground that relevant enquiries were not made by the Assessing Officer. It was specifically stated in the assessment order passed by the Assessing Officer that he had examined, verified and test-checked the entries made in the books of account, sales and purchase invoices, purchase ledger, bank account, etc. It was further stated that the loans were supported by confirmations. There was no finding by the Commissioner to show as to how the aforesaid observations made by the Assessing Officer in his assessment order were factually inco....
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....India Ltd. [2017] 80 taxmann.com 98 (Punjab & Haryana) 9. This presumption is unfounded. Merely because the interestfreefunds with the assessee have decreased during any period, it does not follow that the funds borrowed on interest were utilized for the purpose of investing in assets yielding exempt income. If even after the decrease the assessee has interestfreefunds sufficient to make the investment in assets yielding the exempt income, the presumption that it was such funds that were utilized for the said investment remains. There is no reason for it not to. The basis of the presumption as we will elaborate later is that an assessee would invest its funds to its advantage. It gains nothing by investing interestfreefunds towards other assets merely on account of the interestfreefunds having decreased. In that event so long as even after the decrease thereof there are sufficient interestfreefunds the presumption that they would be first used to invest in assets yielding exempt income applies with equal force." [Para No. 9] 185-188 21. Commissioner of Income-tax-III, Pune v. Sharada Erectors (P.) Ltd. [2016] 76 taxmann.com 107 (Bombay) 7. On the examination of th....
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....e may be. It is not open for him to ignore the same on the ground that the Tribunal's or the High Court's ruling on the question is the subjectmatter of revision or appeal before the higher forum. If he is permitted to take such a view, it would introduce nothing but judicial indiscipline, which is not called for. It would lead to a chaotic situation. The grievance of the revenue may be real and substantial in certain cases but such situation cannot be provided for by judicial interpretation by courts but only by an appropriate agency. 199-204 24. Commissioner of Income Tax vs. Paul Brothers 79 Taxman 378(Bombay) 5. The Calcutta High Court in the case of Russell Properties Pvt. Ltd. v. A. Chowdhury, Addl. CIT MANU/WB/0144/1976 : [1977]109ITR229(Cal) and the Allahabad High Court in K. N. Agrawal v. CIT [1991] 189 ITR 769 have held that where the Income Tax Officer's order is passed on the basis of a binding decision, revisional power under section 263 cannot be exercised to undo the said order. The Income Tax Officer is a quasi-judicial authority and the principle laid down is sound. We endorse the same. [Para No. 5] 205-208 25. Ajeet Singh Vs. ITO,W....
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....e of filing of return of income u/s 139(1) i.e. 30-Nov- 2017. Name of Fund Month Employee's Contribution Due Date of Deposit Actual Date of Deposit Remarks PF Jun-16 87,093 15-Jul-16 19-Jul-16 The payment has been made prior to filing of return ESI Aug-16 11,261 21-Sep- 16 18-Nov-16 ESI Sep-16 11,742 21-Oct-16 18-Nov-16 ESI Dec-16 20,037 21-Jan-17 23-Jan-17 PF Dec-16 1,01,548 15-Jan-17 20-Jan-17 Challan showing deposit of aforesaid amount is enclosed as Exhibit-1. 1.2 As the assessee company has deposited the aforesaid amount before last date of filing of return of income u/s 139(1) of Income Tax Act. 1961, accordingly is admissible in view of following settled judicial pronouncements of jurisdictional High Court. 2.0 Judicial Pronouncements 2.1 Rajasthan High Court in case of Jaipur Vidyut Vitran Nigam Ltd. (2014 (49) taxmann.com 540) held that amount claimed on payment of PF and ESI could not be paid on or before due date under relevant Acts but deposited on or before due date of filing of returns u/s 139 could not be disallowed u/s 36(1)(va). Relevant ....
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....on 139 of the IT Act is made, the employer is entitled for deduction." 2.4 Similarly Delhi High Court in case of AIMIL. Ltd. (2010 (188) taxmann 265) held that employees' contribution towards provident fund and ESI would qualify for deduction even if paid after due date prescribed under Provident Fund Act/ESI Act but before due date of filing of return. Relevant extract is reproduced for ease of reference: "17. We may only add that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late. the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filled, as per the principle laid down by the Supreme Court in Vinay Cement Ltd.'s case (supra)," 3.0 In view of the above, it is submitted that amount deposited as employees contribut....
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.... not specified what enquiry should have been done by the ld. AO. In the absence such clear finding how the order is prejudicial and erroneous. The ld. PCIT cannot gauge that what the specific level up to which the ld. AO has ask the details so as to reach the level of enquiry which that the PCIT deem it fit. Even the amended provision of section 263 inserting explanation 2 does not deal with that situation and for that ld. AR of the assessee draw our attention to the said explanation 2 of section 263. The same is extracted here in below: Explanation 2.-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer 94[or the Transfer Pricing Officer, as the case may be,] shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal 95[Chief Commissioner or Chief Commissioner or Principal] Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with an....
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....ed that while considering the provision of section 263 the ld. PCIT is only supposed to give the opportunity of being heard to the assessee and should not demonstrate all the requirement mentioned in the explanation 2 of section 263. The ld. AO has not given any specific finding on the issue that she has considered. Thus, based on the legal decision cited by the PCIT and above arguments ld. DR supported the order of the PCIT. 14. In the rejoinder to the points raised the ld. DR, ld. AR of the assessee submitted that the judgment of Gahuati Bench of ITAT holding the provision of section 14A retrospectively is reversed by the Delhi HC holding that the provision is prospective in nature. Not only that when the disallowance is already made there is not subject matter of that aspect in this case. That case deal with the disallowance to be made or not whereas in the case of hand the disallowance is already made. As regards the non-mentioning of the fact in the order the same is already held the decision of the jurisdictional Honourable Rajasthan high that it is not relevant that whether the same is mentioned in the order or not but what is to be seen that the issue is verified in the ....
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....t the order of the AO is established to be erroneous in so far as it is prejudicial to the interest of the Revenue. The Principal CIT has to be satisfied of twin conditions, namely (i) the order of the AO sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If any one of them is absent i.e., if the assessment order is not erroneous but it is prejudicial to the Revenue, provision of section 263 cannot be invoked. This provision cannot be invoked to correct each and every type of mistake or error committed by the AO; it is only when an order is erroneous as also prejudicial to Revenue's interest, then the provision will be attracted. An incorrect assumption of the fact or an incorrect application of law will satisfy the requirement of the order being erroneous. The phrase 'prejudicial to the interest of the Revenue has to be read in conjunction with an erroneous order passed by the AO. Every loss of revenue as a consequence of the order of the AO cannot be treated as prejudicial to the interest of the Revenue. It is pertinent to mention that if the AO has adopted one of the two or more courses permissible in law and it has resulted in....
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....ficer called for the information from the assessee on the issue under dispute in the order of the PCIT and has considered the issue by taking a plausible view of the matter. It is also not in dispute that the assessee has provided all the relevant details in the assessment proceedings. The ld. AO based on the information provided by the assessee applied mind on both the issue. On the other hand, the ld. DR did not demonstrate that what are the error apparent on the issue which the ld. PCIT is raising and has not been considered by the AO. Even the assessee has submitted their version on the issues in the assessment proceedings and based on the submission the ld. AO has taken a view which is also a plausible view on the matter based on the complete facts placed before AO. Whereas, the ld. AR also proved from the paper book filed that the related aspect of the issue has been duly considered in the assessment proceeding. The ld. AR also pointed out that the ld. PCIT failed to demonstrate as to why the view taken by the AO is incorrect in law. The view taken by him is even not violates the conditions prescribed under the explanation 2 of section 263 of the Act. The ld. AR controverted ....
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....r the category of erroneous order. (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the Assessing Officer has adopted one of the courses permissible under law or where two views are possible and the Assessing Officer has taken one view with which the does not agree. If cannot be treated as an erroneous order, unless the view taken by the Assessing Officer is unsustainable under law (vi) If while making the assessment, the Assessing Officer examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the Commissioner of Income-tax, while exercising his power under section 263 of the Act is not permitted to substitute his estimate of income in place of the income estimated by the Assessing Officer. (vii) The Assessing Officer exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the Commissioner of Income-tax does not fee stratified with the conclusion. (viii) The Commission....
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....High Court in the case of CIT Vs. Ganpat Ram Bishnoi 152 Taxman 242 where in the court observed that : 10. From the record of the proceedings, in the present case, no presumption can be drawn that the Assessing Officer had not applied its mind to the various aspects of the matter. In such circumstances, without even prima facie laying foundation for holding that assessment order is erroneous and prejudicial to interest in any matter merely on spacious ground that the Assessing Officer was required to make an enquiry, cannot be held to satisfy the test of existing necessary condition for invoking jurisdiction under section 263 of the Income-tax Act. 11. Undoubtedly, the jurisdiction under section 263 is wide and is meant to ensure that due revenue ought to reach the public treasury and if it does not reach on account of some mistake of law or fact committed by the Assessing Officer, the CIT can cancel that order and require the concerned Assessing Officer to pass a fresh order in accordance with law after holding a detailed enquiry. But when enquiry in fact has been conducted and the Assessing Officer has reached a particular conclusion, though reference to such en....
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....99 90,000 714 5,596 Total (A) 1,31,83,917 1,04,598 B. Staff Salary (based on exempt income/total revenue ratio) -Sh. Ritesh Pandey 14,86,119 11,791 -Sh. Apaesh Gandhi 1,95,517 1,551 -Sh. Lavesh Agarwal 2,34,324 1,859 Total (B) 19,15,960 15,201 C. Staff Salary-Dedicated staff Total (C) Total disallowance u/s 14A (A+B) 1,19,799 1,20,000 Round off Note: Justification for computation of disallowance u/s 14A is enclosed as Exhibit-1. Document 2 A Castamet Works Private Limited Investment (Non Current) Detail for Assessment Year 2017-18 14952 L 672.000 6000960 14/07/21 HDFC Adige Pand Collection 125 ONS BQ 1/2/2015 CASTROUND EQ HORCANKE 200 2002 2000 185513 1/2018 ESTENDO 25 12 11/8/2 CISTREND 14725 11/8/2015 CANKBQ 1200 158 11/18/25 COSINEQ 1/8/20STLEND Q 350 14 15/12/20 Pradedal al Pond 15/12/2001 Pral Fund Internal Accural S 145 CCA/CPAR CCA/C BR 10-Aug-16 ECCAC BAR CCA/C, B CCAC BEST CCA/CBR) CANC 11-Aug SCCA/C BR CCANC CCAA05 C Document 3 Page No. 39 MOD B: 0.00 Linit 1,00,00....