TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 715
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....venue. 1.1. That on the facts and in the circumstances of the case, the Id. Principal Commissioner of Income-tax grossly erred in passing the impugned order u/s. 263 of the Income-tax Act and in holding that "the Id. AO has failed to make necessary inquiries regarding eligibility & allowability of the deductions u/s. 10AA of the IT Act, 1961" which is wholly unjustified, bad in law and deserve to be quashed. 1.2. That the Id. Principal Commissioner of Income-tax failed to appreciate that the Id. Assessing Officer had passed the assessment order after appreciating all supporting documents and evidences and past history of the assessee and therefore the assessment order passed by the Id. Assessing Officer is neither erroneous nor is prejudicial to the interest of the revenue. 1.3. That the Id. Principal Commissioner of Income-tax grossly erred in ignoring the detailed submissions made by the assessee in response to notice u/s. 263 and in passing the impugned order on assumptions, presumptions, conjectures and surmises which is bad in law. 1.4. That the Id. Principal Commissioner of Income-tax grossly erred in ignoring that the assessee's appeal was pending with Commis....
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.... Succinctly, the fact as culled out from the records is that the assessee filed his income tax return for A.Y. 2015-16 on 30.11.2015 declaring total income of Rs. 4,68,02,540/-. The assessee company claimed deduction of Rs. 3,90,12,873/- u/s. 10AA. The assessment u/s. 143(1) was completed on 05.08.2016 at total income of Rs. 4,68,02,540/-. 6.1 A survey u/s. 133A of the Income-tax Act was carried out at the business premises of the assessee on 17th & 18th August, 2017. During the course of survey proceedings, it was gathered that another group concern of the assessee i.e. M/s. Pinkcity Colorstone Pvt. Ltd. was having strong profits but later on the same was closed and the Plant and Machinery as well as building was rented over to the assessed company i.e. M/s. Pinkcity Jewelhouse Pvt. Ltd. The management and shareholders of both the companies were/are same. This arrangement has been done for only motive to avoid legitimate taxes. Accordingly, the case was reopened u/s. 147/148 after recording reasons and getting necessary approval of the Addl.CIT, Range-2, Jaipur. 6.2 A notice u/s. 148 was issued to the assessee on 29/12/2017, which was duly served upon the assessee through e-file....
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.... Employee of the assesseeShri Hanuman PrasadSharma in his statements recorded at Sitapura SEZ Unit that during the F.Y. 2010-11 and 2011-12 there was no casting facility at Sitapura Unit and the finished goods were transferred JromMahapura Unit." Thus, ld. PCIT noted that the AO has failed to make necessary inquiries regarding eligibility & allowability of the deduction u/s 10AA of the IT Act, 1961. Therefore, a Show Cause Notice u/s 263 dated 12.03.2021 was issued and hearing fixed on 15.03.2021. In reply of the above Show Cause Notice u/s 263 of the IT Act, 1961 the AR of the Assessee submitted his written submission on 15.03.2021. The ld. PCIT based on the written submission held that ; I have examined the facts at hand. I have studied the reply of the assessee. From the matrix of facts and events, it is noted that the case was reopened under section 148 based upon information gathered specifically in a survey carried out under section 133A, whereby it was found that the assessee is not eligible for claiming, and being granted, benefit under section 10AA of the Income Tax Act 1961. In the assessment order dated 17.12.2018, pursuant to this reopening, it is noted that the Asses....
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.... (SEZ Unit). SEZ Unit constructed its own Building on land owned by it and purchased the necessary Plant & Machinery required for the purpose of manufacturing. 5. That scrutiny assessment u/s. 143(3) of the Act for assessment year 2010-2011 to 2014-2015 was consistently carried out of the assessee appellant. That reassessment for assessment year 2011-2012 was initiated and assessed. Benefit of deduction u/s.10AA was granted. 6. That during the year under consideration assessee appellant had filed its income tax return on 30.11.2015 at Rs 4,68,02,540/- PB-I, Pg. 165-202. 7. That survey proceeding u/s 133A of the Act was carried out against the assessee appellant on 17-18.08.2017 and in consequence, reassessment proceedings u/s. 148 of the Act was initiated for the Assessment Years 2012- 2013 to 2015-2016. That scrutiny assessment u/s. 143(3) of the Act for assessment year 2016-2017 & 2017-2018 was also initiated. 8. That in the reasons recorded for initiating reassessment proceedings initiated for the Assessment Years 2012-2013 to 2015-2016 it was alleged that assessee is transferring semi-finished goods from the Mahapura Unit (DTA unit) to SEZ unit and that SEZ unit did not....
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....00 3,90,12,873.00 17.12.2018 PB-I [20-35] 22.02.2019 (154 order) 2,71,31,212.00 7,05,65,860.00 1,18,81,660.00 7 2016-2017 4,08,10,500.00 3,34,52,232.00 19.12.2018 PB-I [140-154] 1,38,65,057.00 6,03,97,670.00 1,95,87,170.00 8 2017-2018 5,57,64,320.00 4,59,27,499.00 30.12.2019 PB-I [155-164] 4,38,96,065.00 5,77,95,760.00 20,31,440.00 11. That the case of the assessee appellant prior to and subsequent to the survey proceeding was regularly selected for the scrutiny assessment / reassessment and details of additions / disallowances made vide assessment orders prior to survey and post survey are as under: Assessment Year Issue under Scrutiny Particulars Paper Book Detail 2010-2011 AO: 28.03.13 Claiming Deduction U/s 10AA Income Accepted SCN: 36-37 [PBI] Reply: 38-41 [PBI] Order: 42-43 [PBI] 2011-2012 AO: 07.03.14 Claiming Deduction U/s 10AA Income Accepted Order: 44-45 [PBI] 2011-2012 (Reassessment) AO: 18.12.17 Bogus Purchase Deduction u/s 10AA is allowed. Addition made on account of Bogus Purchase Order: 203-217 [PBII] ....
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....es Pvt. Ltd was having strong profits but later on the same was closed and the plant & Machinery as well as building was rented over to the assessee appellant company i.e. Pinkcity Jewel House Pvt Ltd. the employees of M/s. Pinkcity Colorstones Pvt Ltd were also absorbed in M/s Pinkcity Jewel House Pvt Ltd. the management and shareholders of both the companies are same. This arrangement has been done for only motive to avoid due legitimate taxes. the buyers as well as sellers of manufactured/ semi-finished/ raw material goods of assessee company i.e. M/s Pinkcity Jewel House Pvt Ltd remained same as the items were transferred from its Mahapura Unit to the Sitapura SEZ unit. the assessee is transferring semi-finished goods from the Mahapura Unit (Non-deduction claiming unit) to Sitapura Unit (SEZ Unit deduction claiming u/s.10AA) for onwards sale/exports from SEZ Unit. SEZ Unit did not make any value addition on the same. there was no casting facility at Sitapura Unit and the finished goods were transferred from Mahapura Unit. Claim of exemption is barred as per section 10AA(iv)(iii) of the Act. 14. That the assessee appellan....
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....allowing the benefit by referring to section 80IA(10) of the Act. Detailed reply was filed by the assessee appellant vide its letter dated 18.03.2013 and the Assessing Officer was satisfied with the submissions made and thereafter accepted the returned Income vide order dated 28.03.2013. [PB-I, Pg 36-43]. The status of 263 invoked by PCIT for all the years which were undertaken for scrutiny assessment / reassessment is as follows: Assessment Year Order u/s 143(3) 263 Invoked Order u/s 147 263 Invoked 2010-2011 28.03.13 NO NO 2011-2012 07.03.14 NO 18.12.17 NO 2012-2013 27.03.15 NO 17.12.18 NO 2013-2014 21.03.16 NO 17.12.18 NO 2014-2015 25.11.16 NO 17.12.18 NO 2015-2016 17.12.18 YES 2016-2017 19.12.18 NO 2017-2018 30.12.19 NO 15. The ld. PCIT without appreciating the response submitted by the assessee appellant and with predetermined mind invoked the powers conferred u/s 263 of the Act vide order dated 17.03.2021 by holding that the assessee appellant has violated the proviso (iii) of sub clause 4 of section 10AA of the Act. For ready reference relevant provisions of section 1....
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....e gemstones which has been transferred from Mahapura Unit is of Rs 4.80 Crores only and no semi-finished goods were transferred from DTA unit to SEZ Unit. The Mahapura Unit has transferred only Precious and Semi- Precious Gem Stones which are raw material for the SEZ Unit and the SEZ Unit is not in the business of exporting of Gem Stones but SEZ Unit exports only Jewellery whether Studded or not. 21. That when the issue has been examined in detail in the 1st year when the SEZ Unit started its was manufacturing activities, then in any subsequent years a different view cannot be taken. Moreover the provisions of section 10AA(4)(iii) are applicable only when the unit is formed and whereas the case of the assessee appellant for all the years from AY 2010- 11 to AY 2017-18 have been completed u/s 143(3) / 148 after due verification and scrutiny and in none of these years the deduction was not disallowed for the reason that some plant & machinery have been transferred from domestic unit to SEZ Unit (which itself is factually wrong). 22. That it is to be highlighted that on identical facts & backdrop, no proceeding were initiated u/s 263 of the Act in any other assessment year other t....
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....not satisfied. Each and every erroneous order cannot be the subject matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. If the assessment / reassessment orders for A.Y. 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2016-17 & 2017-18 are not erroneous and prejudicial to the interest of the revenue then how come the assessment order for 2015-16 is erroneous and prejudicial to the interest of the revenue. 25. The phrase "prejudicial to the interest of the revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue has a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. For example, when an Assessing Officer adopted one of the courses permissible in law and it has resulted in loss ....
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.... is that to establish order of the AO is to be erroneous insofar as it is prejudicial to the interest of the Revenue, the PCIT has to satisfy of twin conditions simultaneously, 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, s. 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, that 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. However, every loss of revenue as a consequence of the order of the AO cannot be treated as prejudicial to the interest of the Revenue. For example, if the AO has adopted one of the two or more courses permissible in law and it has resulted in loss of revenue, or where two views are possible and AO has taken one view with which the PCIT does not....
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....nsideration. We hold that the order of the CIT passed u/s 263 is bad in law and as such it is quashed. Appeal of assessee allowed. * Hon'ble ITAT Delhi Bench in Majestic Properties Pvt. Ltd. v. PCIT (2023) 8 TMI 673 [Compilation 14-17] has held: 8.1 As regards the issue of non-disallowance of loss on sale of tower, it is duly emanating that this aspect was raised on the basis of audit objection. The case laws cited by the ld. Counsel of the assessee duly establish that revisionary power u/s 263 cannot be initiated on the basis of audit objection. Hence, we set aside the order passed by the ld. Pr.CIT on this issue. * Hon'ble ITAT Chandigarh Bench in Paramjit Singh v. PCIT (2016) 12 TMI 799 [Compilation 18-28] has held: No factual error has been pointed out by the audit party in this case because case was selected for scrutiny for cash deposits in the bank accounts of the assessee. The audit party did not agree with the findings of the Assessing officer, therefore, it could not be said that the assessment order was erroneous in so far as the prejudicial to the interest of the Revenue. The Ld. Counsel for the assessee therefore, rightly contended that the contents of t....
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....g been routed through the range JCIT with his own letter dated 27-03-2018. Pursuant to such letter of the AO, the ld. PCIT issued the above show cause notice on 29-05-2018. It is apparent that the entire foundation of the revision is based on the AO requesting the ld. PCIT to revise the assessment order. Both the conditions, namely, the CIT calling for and examining the record and then considering the assessment order passed by the AO to be erroneous and prejudicial to the interest of the Revenue are to be cumulatively satisfied by the CIT alone. The use of the word `and' between the two expressions amply demonstrates that the calling for and examining the record by the CIT should precede and his such examination should culminate in getting satisfied that the order passed by the AO is erroneous and prejudicial to the interest of the Revenue. If one of these conditions gets negated, that is, either he does not call for and examine the record or such examination does not lead him to satisfying the assessment order erroneous etc., the jurisdiction u/s. 263 is not activated. Revision u/s. 263 is concerned, it is the sole prerogative of the Pr. CIT, who needs to take suo motu a....
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....n legality aspect itself and restore the original assessment-order passed by AO - Decided in favour of assessee. * Hon'ble ITAT Pune Bench in Alfa Laval Lund AB v. CIT (2021) 11 TMI 327 [Compilation 90-92] has held: Revision u/s 263 by CIT - HELD THAT:- Section 263 of the Act confers power on the CIT to revise an assessment order, subject to certain conditions. Instantly, we are confronted with a situation in which the revision was initiated on the basis of the AO sending a proposal to the CIT and not on the CIT suo motu calling for and examining the record of the assessment proceedings and thereafter considering the assessment order erroneous and prejudicial to the interests of the revenue. AO recommending a revision to the CIT has no statutory sanction and is a course of action unknown to the law. If AO, after passing an assessment order, finds something amiss in it to the detriment of the Revenue, he has ample power to either reassess the earlier assessment in terms of section 147 or carry out rectification u/s 154 of the Act. He can't usurp the power of the CIT and recommend a revision. No overlapping of powers of the authorities under the Act can be permitted. As the r....
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.... an adjournment was sought by ld. D/R, however, due to non-availability of Hon'ble Judicial Member, the matter was adjourned to 03.01.2024. On 03.01.2024 again an adjournment was sought by ld. D/R and matter was listed for final hearing on 16.01.2024. On 16.01.2024 again an adjournment was sought by ld. D/R. At one end, the ld. D/R has been seeking adjournment since 31.10.2023, however, at the other side the ld. D/R vide its letter dated 08.11.2023 PB-IV, Pg. 309 has asked the ld. PCIT (Central) to take remedial action u/s. 148 / 263 for the remaining years. On the basis of ld. D/R's letter, the department though has not initiated proceedings u/s. 263 for A.Y. 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2016-17 & 2017-18 since the same is barred by limitation, however, on the basis of the same, the ld. CIT(A) has issued notices dated 04.01.2024 PB-IV, Pg. 276-305 proposing enhancement of income for appeals pending before him for A.Y. 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 & 2017-18. Interestingly the enhancement notices have been issued mechanically on the basis of letters written by the AO PB-IV, Pg. 306-308 / D/R, without even any submission being made by the assessee appel....
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.... passed u/s 147 r.w.s. 143(3) of the Act for the A.Y. 2011-2012 203 217 2. Copy of notice dated 28.08.2018 and 19.08.2018 issued u/s 142(1) of the Act for the A.Y. 2012-2013 218 221 3. Copy of Reply to the notice dated 28.08.2018 and 19.08.2018 for the A.Y. 2012-2013 222 225 4. Copy of notice dated 27.08.2018 and 19.08.2018 issued u/s 142(1) of the Act for the A.Y. 2013-2014 226 239 5. Copy of Reply to the notice dated 27.08.2018 and 19.08.2018 for the A.Y. 2013-2014 240 243 6. Copy of notice dated 28.08.2018 and 19.08.2018 issued u/s 142(1) of the Act for the A.Y. 2014-2015 244 247 7. Copy of Reply to the notice dated 28.08.2018 and 19.08.2018 for the A.Y. 2014-2015 248 251 8. Copy of notice dated 28.08.2018 and 19.08.2018 issued u/s 142(1) of the Act for the A.Y. 2015-2016 252 255 9. Copy of Reply to the notice dated 28.08.2018 and 19.08.2018 for the A.Y. 2015-2016 256 259 10. Copy of ledger of Plant & Machinery of Pinck City Jewel House SEZ Unit for the A.Y. 2015-2016. 260 26....
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....based on the legal decision on the same issue of audit objection decided by the Punjab and Haryana High Court where in the court held that based on the audit objection jurisdiction u/s. 263 of the Act cannot be invoked. Similar view is taken by the Delhi bench of ITAT in the case of Majestic Properties Pvt Ltd., and case laws cited in the case law compilation on the issue. The ld. AR of the assessee also relied upon the decision of Radhasoami Satsang Vs. CIT stating that the revenue should take one stand on the similar set of facts and where in the earlier year there the claim has been accepted the same should be accepted in this year to maintain the consistent view. The ld. AR of the assessee also submitted that in the re-opened assessment the assessing officer has examined the claim of the assessee and added some of the amount for which the separate proceeding is going on and therefore, there is no meaning to again invoke the provision of section 263 of the Act in this case merely based on the audit objection. 10. On the other hand, the ld. DR representing the revenue has relied upon the finding recorded in the order of the ld. PCIT. The ld. DR submitted that though the case of ....
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....have been initiated are vague. The issue was also raised and explained during the course of assessment proceedings and being satisfied no adverse view was taken and thus reopening of assessment on this ground is merely a change of opinion which is not permissible under section 147. Thus, the view of the PCIT is based on the averment confirmed by the assessee in 148 proceeding so there is clear absence of finding in the order of the assessing officer and therefore, ld. DR supported the order of the ld. PCIT. 11. The ld. AR of the assessee in the rejoinder submitted that there is no confirmation of the assessee, but it is rebuttal to the notice issued and objection of the assessee denying the allegation and thus, in fact it selfshows that the ld. AO has examined this issue and has applied his mind. Though there is no finding recorded in the order this does not made the order automatically erroneous or prejudicial order. 12. We have heard the rival contentions and perused the material placed on record and have also gone through the various judicial decisions cited by both the parties to drive home to the contentions raised. The bench noted that a survey u/s. 133A of the Income-tax....
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....ed to the non deduction claiming company but also they are equally responsible for all the decisions of SEZ unit which is deduction claiming unit. The assessee has not debited the proportionate salary of directors, head office/ registered office expenses between the deduction claiming and non-deduction claiming unit. If, all the transaction are to be transferred at market rate between deduction claiming and non deduction claiming unit; then there should also be price/ value of hidden benefits which enjoyed by the deduction claiming SEZ unit. No expenses debited on account of use of brand value created by non deduction claiming unit which exists for number of years and/ or use of marketing network. Heavy expenses incurred over the years on technologies, research on new productions and marketing. The new undertaking SEZ unit profit derived from exploitation of inherent value of self generated brand as well as profit derived from the usage of the marketing network owned by the Mahapura unit. Without getting these Marketing Rights (intangible asset), the assessee cannot sell its products in the market. Thus; the SEZ, Sitapura deduction claiming unit received intangible benefits without....
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....re/are same. This arrangement has been done for only motive to avoid due legitimate taxes. The also noted that the buyers as well as sellers of manufactured/ semi finished/ raw materialgoods of assessee company i.e. M/s Pinkcity JewelhousePvt Ltd remained same as the items were transferred from its Mahapura Unit to the_Sitapura_SEZ unit. It was found that assessee is transferring semi-finished goods from the Mahapura Unit (Non-deduction claiming unit) to Sitapura Unit(SEZ Unit deduction claiming u/s.10AA) for onwards sale/exports from SEZ Unit. During survey proceedings it was learnt that SEZ Unit did not make any value addition on the same. This fact was clearly admitted by the General Manager Shri Rajeev Gupta at the survey premises located at Sitapura SEZ Unit and further accepted by Shri Manuj Goyal, Director of assessee company. It was also admitted by the Sr. Employee of the assessee Shri Hanuman Prasad Sharma in his statements recorded at Sitapura SEZ Unit that during the F.Y. 2010-11 and 2011-12 there was no casting facility at Sitapura Unit and the finished goods were transferred Jrom Mahapura Unit." Therefore, ld. PCIT observed that the ld. AO has failed to make necessary....
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....r 2010-2011, i.e., the first year in which deduction u/s. 10AA was claimed the Assessing Officer had issued notice dated 12.03.2013 proposing disallowing the benefit by referring to section 80IA(10) of the Act. Detailed reply was filed by the assessee appellant vide its letter dated 18.03.2013 and the Assessing Officer was satisfied with the submissions made and thereafter accepted the returned Income vide order dated 28.03.2013. [PB-I, Pg 36-43]. * The status of 263 invoked by PCIT for all the years which were undertaken for scrutiny assessment / reassessment is as follows: Assessment Year Order u/s 143(3) 263 Invoked Order u/s 147 263 Invoked 2010-2011 28.03.13 NO NO 2011-2012 07.03.14 NO 18.12.17 NO 2012-2013 27.03.15 NO 17.12.18 NO 2013-2014 21.03.16 NO 17.12.18 NO 2014-2015 25.11.16 NO 17.12.18 NO 2015-2016 17.12.18 YES 2016-2017 19.12.18 NO 2017-2018 30.12.19 NO 14. The bench noted that the ld. PCIT without dealing with the contention summarily passed an order by holding that the assessee is not eligible to claim benefit u/s. 10AA of the Act and he hold that there is lack of....
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....n 1-3] wherein the court held that "A reference to the provisions of section 263 of the Act shows that jurisdiction thereunder can be exercised if the Commissioner of Income-tax finds that the order of the Assessing Officer was erroneous and prejudicial to the interests of the Revenue. Mere audit objection and because a different view could be taken, are not enough to say that the order of the Assessing Officer was erroneous or prejudicial to the interests of the Revenue. The jurisdiction could be exercised if the Commissioner of Income-tax was satisfied that the basis for exercise of jurisdiction existed. No rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the Commissioner of Income-tax for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation." 16. Even the co-ordinate bench of Amritsar in Rajinder Kaur v. ITO (2023) 4 TMI 565 [Compilation 4-13] has held that "Admittedly, the proceedings were initiated u/s 263 of the Act on the basis of audit objection and consequent order passed u/s 263 of the Act is opposed to judgment of SOHANA WOOLLEN MILLS [2006 (9) TMI 157 - ....
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....& 2017-18 since the same is barred by limitation, however, on the basis of the same, the ld. CIT(A) has issued notices dated 04.01.2024 PB-IV, Pg. 276-305 proposing enhancement of income for appeals pending before him for A.Y. 2012-13, 2013- 14, 2014-15, 2015-16, 2016-17 & 2017-18. Interestingly the enhancement notices have been issued mechanically on the basis of letters written by the AO PB-IV, Pg. 306-308 / D/R, without even any submission being made by the assessee appellant before him. Despite directions of the Hon'ble Bench given vide its order dated 16.01.2024, copy of report, if any, to be submitted by the Assessing Officer on the pretext of which adjournment has been sought from 31.10.2023 has not provided to the assessee appellant. 18. Thus, the bench noted the action for the year under consideration is based on the revenue audit objection for the year under consideration got confirmed and thus we note that the provisions of section 263 in the instant case, the rules of consistency has been given a complete by pass the ld. PCIT which is impermissible. The Hon'ble Supreme Court in Radha Soami Satsang v. CIT (1991) 11 TMI 2 observed that We are aware of the fact that, st....