TaxTMI 
TaxTMI 
2024 (3) TMI 959
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case of the assessee was picked up for scrutiny and notice under Section 143(2) of the Act was issued on 10 August 2018. 3. Pursuant to the said notice, an inquiry was undertaken and an assessment order under Section 143(3) of the Act was passed on 26 December 2018, whereby, the Assessing Officer ["AO"] determined the income of the assessee to be INR 4,55,45,110/-, while making an addition of INR 2,76,610/- under Section 14A of the Act. 4. Aggrieved by the assessment order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals) ["CIT(A)"] and the CIT(A) vide its order dated 24 June 2019 partly allowed the appeal of the assessee and restricted the addition made by the AO to the extent of INR 1,37,022/-. 5. Thereafter, by virtue of the powers vested under Section 263 of the Act, the PCIT perused the assessment order dated 26 December 2018 and issued a notice to the assessee on 28 March 2021. Consequently, on 31 March 2021, while exercising powers under Section 263 of the Act, the PCIT set aside the assessment order dated 26 December 2018 considering it to be erroneous and prejudicial to the interests of the Revenue and directed the AO to consider the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....used the record. 11. Before adverting to the merits of the case, it is pertinent to refer to Section 263 of the Act, the relevant extract of which is reproduced herein for reference:- "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 [or the Transfer Pricing Officer, as the case may be,] is erroneous in so far as it is prejudicial to the interest 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,- (i) an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment; or (ii) an order modifying the order under Section 92-CA; or (iii) an order cancelling the order under Section 92-CA and directing a fresh order under the said section.] *** [Explanation 2.- For the purposes of this section, it is her....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rerequisite to exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income Tax Officer is erroneous insofar as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent - if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue - recourse cannot be had to Section 263(1) of the Act. *** 8. The phrase "prejudicial to the interests of the Revenue" is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. The High Court of Calcutta in Dawjee Dadabhoy & Co. v. S.P. Jain [(1957) 31 ITR 872 (Cal)] , the High Court of Karnataka in CIT v. T. Narayana Pai [(1975) 98 ITR 422 (Kant)] , the High Court of Bombay in CIT v. Gabriel India Ltd. [(1993) 203 ITR 108 (Bom)] and the High Court of Gujarat in CIT v. Minalben S. Parikh [(1995) 215 ITR 81 (Guj)] tre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the germane value of the twin conditions imposed under Section 263 of the Act, before invoking the revisional powers. The relevant extract of the said decision is reproduced herein for reference:- "27. Learned counsel appearing on behalf of the assessee has heavily relied upon the decision of this Court in the case of Malabar Industrial Co. Ltd. (supra). It is true that in the said decision and on interpretation of Section 263 of the Income Tax Act, it is observed and held that in order to exercise the jurisdiction under Section 263(1) of the Income Tax Act, the Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. It is further observed that if one of them is absent, recourse cannot be had to Section 263(1) of the Act..." [Emphasis supplied] 16. After examining the scope of the revisional powers under Section 263 of the Act which suggests that both the sacrosanct conditions must stand satisfied, it is now apposite to refer to the facts of the present case. A bare perusal of the assessment order dated 26 December 2018 woul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....directly used towards earning of exempt income should have been apportioned and disallowed by the assessee, which has been calculated by the assessee company at Rs. 1,25,000/-. However, as the disallowances has to be made as per rule 8D(2)(iii) with respect to other expenses, it has to be done as per prescribed rules. It is found from the computation filed by the assessee that only the investments in M/s PAV Reality limited was considered leaving investments in other shares, which should also have been considered while computing disallowances as per rule 8D(2)(iii)." 17. Further, once the assessment order was passed on 26 December 2018, the PCIT invoked the powers vested under Section 263 of the Act and issued a notice on 28 March 2021 to the assessee inquiring about the loans advanced to the assessee by M/s. Sarvottam Securities Ltd. and M/s. Upaj Leasing & Finance Pvt. Ltd. for AY 2016-17. It was further clarified that the genuineness and the creditworthiness of the loan funds issued to the assessee was not properly examined by the AO and an opportunity of hearing was also afforded to the assessee to explain the aforementioned loan transactions. 18. Pursuant thereto, after con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....accepted to have provided bogus entries to the tune of Rs 46.06 Crore to the concern M/s Paramount Propbuild Pvt Ltd. during the FYs 2015-16 and 2016-17. The copy of report was enclosed along with the survey report and the copy of ledger accounts of the assessee company M/ s Paramount Propbuild Pvt Ltd in the books of shell companies M/s Sarvottam Securities Pvt Ltd and M/s Upaj Leasing & Finance Co. Pvt Ltd were also provided as enclosures. 4. During the assessment proceeding in case of assessee for the A.Y. 2017-18, the interest payment made against the aforesaid entries by M/s Paramount Propbuild Private Limited to M/s Upaj Leasing & Finance Company Pvt Ltd and M/s Sarvottam Securities Pvt Ltd during the FY 2016-17 relevant to the. AY 2017-18 to the tune of Rs. 3,23,93,370/- i.e. Rs. 2,12,69,370/- and Rs. 1,11,24,000/- respectively were disallowed by the AO while passing order u/s 143(3) of the IT Act dated 16.12 2019. 5. Also, during the assessment proceedings for the AY 2017-18, the assessee in response to show cause notice submitted that it had taken interest bearing unsecured loan from the Non-Banking finance companies M/s Sarvottam Securities Pvt Ltd and Upaj Leasing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uently amended u/s. 154/143(3) is erroneous and prejudicial to the interest of the revenue and requires remedial action u/s 263 of the Income tax Act, 1961. *** 11. Assessee has made a submission that the Assessing Officer has made all the necessary enquiries and taken a view for framing the Assessment Order, and that the order passed by the AO is not erroneous nor prejudicial to the interest of the revenue. However, this is not borne out from the facts available on assessment record. I have carefully perused the assessment records and the assessment order, and I am satisfied that it is a case of lack of enquiry on the claim of unsecured loans by the assessee in its return, despite existence of information about the bogus nature of the loan transactions, especially in respect of M/s Sarvottam Securities Pvt Ltd and M/s Upaj Leasing & Finance Co. Pvt Ltd., allegedly operated by the entry operator Shri Himanshu Verma. The assessing officer has omitted to act on the information contained in the survey report forwarded by. the DDIT (Inv.), Noida relating to assessment year 2017-18, which also had information relating to transactions of assessment year 2016-17. This omission becom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessee is exhibited at pages 17 to 20 of the paper book, Confirmation of loan transaction with M/s Sarvottam Securities Pvt Ltd and Upaj Leasing and Finance Co. Pvt Ltd were submitted which are placed at pages 47 to 49 of the paper book. 9. To further examine the loan transaction, the Assessing Officer issued notice u/s 133(6) of the Act to M/s Sarvottam Securities Pvt Ltd and M/s Upaj Leasing and Finance Co. Pvt Ltd. Such notices are placed at pages 322 to 361 of the paper book. 10. M/s Sarvottam Securities Pvt Ltd responded to the notice received by it u/s 133(6) of the Act and filed complete details sought by the Assessing Officer which included confirmation of loan, copy of ledger account, copy of their Income tax return alongwith financial statement for the year ending 31.03.2016. These details are exhibited at pages 324 to 362 of the paper book. 11. Similarly, M/s Upaj Leasing and Finance Co. Pvt Ltd responded to the notice received by it u/s 133(6) of the Act from the Assessing Officer and furnished similar details. Such details are exhibited at pages 365 to 441 of the paper book. *** 21. Facts mentioned elsewhere clearly show that this is not a case of lack....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ined from the shell companies, then the AO ought to have done further inquiry to ascertain the genuineness and creditworthiness of the loan transactions. 22. The aforenoted aspect, whether the creditworthiness of the loan transactions was a relevant inquiry or not has also been considered by this Court in the case of CIT v. N. R. Portfolio P. Ltd. [2013 SCC OnLine Del 6466], wherein, it was observed that the mere production of incorporation details, Permanent Account Number ["PAN"] or the fact that the company had filed ITR details does not verify the genuineness and creditworthiness of the transactions. The relevant extract of the said decision is reproduced herein for reference:- "27. The decision in the case of Lovely Exports (supra) was considered in CIT v. Nova Promoters and Finlease P. Ltd. (supra) and it was elucidated : "The ratio of a decision is to be understood and appreciated in the background of the facts of that case. So understood, it will be seen that where the complete particulars of the share applicants such as their names and addresses, Income-tax file numbers, their creditworthiness, share application forms and shareholders. register, share transfer regist....
X X X X Extracts X X X X
X X X X Extracts X X X X
....statements, etc., was not sufficient to discharge the onus. 29. In CIT v. Nipun Builders and Developers P. Ltd. [2013] 350 ITR 407 (Delhi), this principle has been reiterated holding that the assessee and the Assessing Officer have to adopt a reasonable approach and when the initial onus on the assessee would stand discharged depends upon the facts and circumstances of each case. In case of private limited companies, generally persons known to directors or shareholders, directly or indirectly, buy or subscribe to shares. Upon receipt of money, the share subscribers do not lose touch and become incommunicado. Call monies, dividends, warrants, etc., have to be sent and the relationship is/was a continuing one. In such cases, therefore, the assessee cannot simply furnish details and remain quiet even when summons issued to shareholders under section 131 return unserved and uncompiled. This approach would be unreasonable as a general proposition as the assessee cannot plead that they had received money, but could do nothing more and it was for the Assessing Officer to enforce shareholders attendance. Some cases might require or justify visit by the Inspector to ascertain whether the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h entities are not bona fide. As observed in N.R. Portfolio [Supra], the task of unveiling the mischief of the human minds working behind the corporate veil in such cases requires a deeper scrutiny, which goes beyond the periphery of documents ordinarily submitted for the purpose of assessment. An inquiry for ascertaining the creditworthiness and genuineness of financial transactions necessarily requires unknotting of the transactions, by going beyond what is conspicuously available. 24. Unfortunately, the assessment order nowhere reflects any element of inquiry or verification. The discussion about the loan transactions in question is altogether missing. Furthermore, the assessment record would also reflect that the AO has not taken any concrete steps to ascertain the genuineness and creditworthiness of the transactions, which merits consideration in the light of the findings that emerged from the DDIT investigation report and assessment proceedings of M/s. Upaj Leasing & Finance Pvt. Ltd. It emerges that the present is a case where the AO failed not only to spell out any finding about the DDIT investigation report and assessment proceedings of M/s. Upaj Leasing & Finance Pvt. Lt....