TaxTMI 
TaxTMI 
2026 (9) TMI 1155
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...., Circle 16(2) Mumbai erred in assuming jurisdiction and invoking the provisions of section 263 of the Income-tax Act, 1961 (the Act') and revising the assessment order dated 27 July 2022 passed by the National Faceless Assessment Centre ('NaFAC') Delhi/Learned Assessing Officer ('AO') under section 143(3) read with section 144C(3) of the Act without appreciating that the said assessment order is neither erroneous nor prejudicial to the interests of revenue. 1.2 While doing so, PCIT failed to appreciate, inter alia that: a) the show-cause notice under section 263 of the Act issued by the PCIT did not refer to Explanation 2 to section 263 of the Act and thus, the invocation of the same in order is not tenable in law; b) the AO passed its order under section 143(3) of the Act after making due inquiries; c) where two views are possible, and the AO has adopted one of the plausible views then revision proceedings ought not be resorted to; d) Twin conditions are to be satisfied i.e. viz. orders is erroneous and prejudicial to the interest of revenue; e) The assessment order passed under section 143(3) read with sec....
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....ed assessment the AO had made certain additions: * disallowance under Section 40(a)(ia) for Rs. 75,05,502/- * disallowance under Section 40(a)(i) for Rs. 31,35,384/- * disallowance under Section 92CA of Rs. 31,26,93,637/- 3. Subsequently, the Ld. PCIT observed that during the year under consideration the assessee has shown total External Commercial Borrowings (ECB) of Rs. 90,00,00,000/- from related parties and short-term borrowings of Rs. 2,25,07,000/-. Ld. PCIT noted from the profit and loss account of the assessee that the assessee had paid interest expense of Rs. 9,28,63,353/-, which was claimed as revenue expense and the same was accepted and allowed by the assessing officer. Further, from the assessee's Form 3CEB (Clause 12), it is found by the ld. PCIT that the assessee had purchased fixed assets from subsidiary company, i.e. Solvay S.A. Belgium, amounting to Rs. 26,81,02,423. The same was put to use and depreciation was claimed on the said asset. There were major additions in fixed assets under the head Plant and machinery. It was further observed that for the purchase of assets borrowed funds (loan) were utilized, hence the interest expens....
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....d. PCIT was of the view that the impugned assessment order dated 27/7/2022 was erroneous within the meaning of Section 263 of the Income-tax Act, 1961. 8. In response to the aforesaid issues raised by the learned PCIT in the notice issued under section 263 of the Act, the assessee filed a detailed response, contending that the issues sought to be revised had been duly examined and enquired into by the learned Assessing Officer during the course of the assessment proceedings. It was submitted that, upon considering the relevant material and explanations furnished by the assessee, the learned Assessing Officer thereafter passed the assessment order. Accordingly, it was contended that the assessment order could neither be regarded as erroneous nor as prejudicial to the interests of the Revenue, so as to warrant assumption of revisional jurisdiction under section 263 of the Act. 9. The Ld. PCIT was not convinced with the submissions of the assessee therefore, had directed the AO to revise the assessment on the following issues: Issue Amount Principal observation recorded Interest on borrowed funds Rs.2,01,05,674 Loan utilised for acquisition of capital assets; e....
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.... the Ld. PCIT has two components viz. interest on external commercial borrowings ("ECB") of INR 845.86 lakhs and other interest of INR 82.77 lakhs. Both the expenditure was duly inquired and examined by the Assessing Officer and the said fact can be gathered from the details filed before the Assessing Officer. To demonstrate its bona fide, the Appellant would like to draw Your Honours' attention to the details filed with lower authorities and which was available with the Ld. PCTT (as it was forming part of records) and in addition, was filed with the Ld. PCIT. Interest on External Commercial Borrowings: 3.5. The Appellant draws Your Honours' attention to Note 18 of the Audited Financial Statements (relevant Page No.83 of ITAT paperbook) which deals with 'Borrowings- non current within which there is a further note appended which reads as The above loan taken for general corporate purposes, carries an interest rate of 9.25% and is payable during the year ending 31 March 2022. For ease of reference, the relevant extract of the audited financial statements are produced herein: 3.6. To further substantiate its contention that the ECB borrowing was....
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.... advances taken by the Appellant in prescribed format along with documentary evidence by issuing notice under section 142(1) of the Act. to which, the Appellant vide its reply dated 27 April 2021 submitted its response. 3.10.2. Attention in this regard is drawn to the notice dated 09 April 2021 wherein vide Point No.12. the Assessing Officer has called for details of loans and advances and vide point No. 13 has called for details of interest expenditure incurred by the Appellant; NOTE: In its notice, the Assessing Officer also specifies the amount of interest expenditure of INR 9.28 lakhs which it seeks to examine (for the same amount, the Ld. PCIT also seeks to invoke revision jurisdiction) 3.10.3. In response to the same, the Appellant vide its letter dated 27 April 2021 (relevant Page 160 of ITAT Paperbook) submitted the details of the loan taken and interest expenditure incurred in the prescribed format vide Annexures 10-11 and Annexure 12 respectively and the same is at Paperbook Page No.172-174 respectively. 3.10.4. For ease of reference, the details of loan taken along with interest paid and TDS deducted is produced hereunder: 3.1....
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....t any material or fact or contention to demonstrate that the said expenditure warrants further inquiry or verification. In absence of the same invoking revision proceedings is contrary to the settled judicial precedents that the Ld. PCTT has to demonstrate how the twin conditions are satisfied viz. erroneous and prejudicial to the interest of the revenue. Proposition 1: Twin conditions under section 263 of the Act is to be satisfied: 3.14. In order to invoke provisions of section 263 of the Act, twin conditions are to be satisfied, namely, (1) the order of the Assessing Officer sought to be revised is erroneous; and (if) it is prejudicial to the interests of the revenue. If either of the condition is absent, the provisions of section 263 of the Act cannot be invoked. Reliance in this regard is placed to the decision of the Hon'ble Supreme Court rendered in case of Malabar Industrial Co. Ltd. v. CIT ((2000) 243 ITR 83 (SC)] wherein it was held as under: "6. A bare reading of this provision makes it clear that the pre-requisite to exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the ITO is erroneous insofar as it is p....
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....of PCIT v. V-Con Integrated Solutions (P.) Ltd [(2025) 476 ITR 586] (tendered in course of hearing) wherein the Hon'ble Court held as under: 3. The assessee does not have control over the pen of the Assessing Officer. Once the Assessing Officer carries out the investigation but does not make any addition, it can be taken that he accepts the plea and stand of the assessee." 3.19. Similar view has also been propounded by the Hon'ble Jurisdictional High Court in case of CIT Chandan Magraj Parmar ((2022) 285 Taxman 565] wherein the Hon'ble Court in context of section 263 held as under: 7. The ITAT has given a finding that the claim of capital gain was accepted by AO after necessary inquiry and the order under section 143(3) of the Act was passed. It is true that the AO has not passed any written detailed order while accepting the explanation of capital gains of Respondent but the fact is AO had raised queries and Respondent has given detailed reply means the AO has passed this order after making necessary inquiries. We agree with the view of the ITAT that the order of the AO cannot be branded erroneous merely because the order does not contain the....
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....ra 12 of the Ld. PCIT's order. For ease of reference, the same is reproduced hereunder: SI. No. Name of Expenses Amount of Rs. Remarks 1. GST on Sample Sales 30,70,933 GST taken as cost on providing of samples of our products to customers in the normal course of business 2. Old Grir Write Off 90,88,676 Old debtor/creditor balances written off 3- Various Customer 57,20,269 Cost of Free Samples provided to Customer 4. Various Employees 61,77,833 Reimbursement of expenses 3.24. On perusal of Para 12.1 of the Ld. PCIT's order, the Ld. PCIT seeks to deny the claim of the Appellant by inter alia holding that assessee giving details of Miscellaneous expenses, it is observed that the assessee has not provided the important details ie., PAN, Address and amount of TDS deducted for the transactions made with the above entities whereas the same details have been provided by the assessee for the other entities and thus, the assessee has not provided any substantial details for the transactions made with above entities and accordingly, should not be considered as business expense under section 37(1) of the Act. ....
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....llaneous expenditure, the Appellant was accorded to present its case in relation to virtual hearing, wherein the Assessing Officer called for explanation in relation to the GST on sample sales and commission expenses (forming part of miscellaneous expenses). In response to the same, the Appellant vide its submission dated 27 September 2021 (Page 319 of ITAT Puperbook) has submitted explanation of allowability of GST on sample sales amounting to INR 30,70,933 and the commission on export/import. 3.26.5. Another item forming part of the said tabulation is reimbursement of expenditure amounting to INR 61,77,833 in respect of which the Appellant submits that the said details were also provided to the Assessing Officer in course of assessment proceedings and the same can be gathered from Page No.205-209 of ITAT Paperbook. On perusal of the above, it would be amply clear that the Appellant has given details for the exact amount of reimbursement of expenditure. Note: The aforesaid details were also made available to the Ld. PCIT in course of revision proceedings and the same can be gathered from the Para 3.44 of the Appellant's submission filed in course of revision ....
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....ma facie material to demonstrate that the order was erroneous and prejudicial to the interests of revenue. To support its contention, the Appellant would like to rely on the decision of the Hon'ble Jurisdictional High Court in case of CIT v. Gabriel India Ltd [(1993) 203 ITR 108 (Bombay HC)]. To elucidate the facts or issue before the Court was whether the revision proceedings are tenable with respect to the plant re-layout expenditure incurred by the Assessee claimed as revenue expenditure which was duly inquired and explained by the Assessee to Assessing officer. However, CIT was of the view that the said expenditure was capital expenditure and accordingly invoked revision proceedings. The Assessee challenged the Assessing Officer and the Hon'ble Court held as under: "11. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an ITO acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a cas....
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....ise power under Section 263 of the Act and re-assess an already concluded assessment. Section 263 of the Act confers power to examine an assessment order so as to ascertain whether it is erroneous and prejudicial to the interest of the revenue but does not confer jurisdiction upon the CIT to substitute his opinion for the opinion of the Assessing Officer. The words prejudicial and erroneous have to be read in conjunction and therefore, it is not each and every error in an assessment that invites exercise of powers under Section 263 of the Act, but only orders that are erroneous and prejudicial to the interest of the revenue......." (Emphasis supplied) 3.30. Reliance is also placed on following judicial precedents: CIT v. Ashish Rajpal [(2010) 320 ITR 674 (Delhi HC)] (Para 14 & 15) CIT v. Arvind Jewellers ((2003) 259 ITR 502 (Gujarat HC)] Samit Ashok Soniminde v. ITO [ITA No.2763 of 2024 (Mumbai Tribunal) (Para 9) M/s. N.J.Eco-Build Pvt. Ltd. v. PCIT [ITA No.221 of 2019 (Surat Tribunal)] In view of the above, the Appellant submits that the provisions of section 263 of the Act ought not to be invoked by the PCIT to substitute i....
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....ity of TDS party wise (at Page 278 of ITATPaperbook) Note: The aforesaid details were also made available to the Ld. PCIT in course of revision proceedings and the same can be gathered from the Para 3.54 of the Appellant's submission filed in course of revision proceedings in response to revision notice and the same is also gathered from Page No.19 of PCIT's order. It would not be out of place to demonstrate here that the Assessing Officer in its assessment order passed under section 143(3) of the Act dated 27 July 2022 vide Para 8.3 categorically notes that show-cause notice was issued and in response to which the Appellant filed the requisite details and pursuant to which the Assessing Officer has dropped the addition by holding that it is not FTS under the DTAA. Forease of reference, the relevant extract of the said findings of the Assessing Officer (relevant Para 8.3, the relevant extract is at internal Page 11-12, Appeal Memorandum Page 5556) is produced hereunder: Assessee has provided the copy of invoices, Bank statement reflecting payments to above parties, and copy of service agreements signed with above parties. The services pro....
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....not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the ITO is unsustainable in law......" 3.37. Attention is also drawn to the decision of the Hon'ble Jurisdictional High Court in case of CITV. Gabriel India Ltd. (supra) wherein it is held as under: From a reading of sub-section a of section 26g, it 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 ve....
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....e revenue, then also the power of suo motu revision cannot be exercised. Any 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." In view of the above, the Appellant humbly submits that the action of Ld. PCIT in substituting his view in lieu of the Assessing Officer in absence of any material or documents then exercise of jurisdiction of revision proceedings is bad-in-law. In addition to the above, to challenge the revision proceedings, the Appellant also relies on the following propositions: Proposition 3: Distinction between 'lack of inquiry' and 'inadequate inquiry': 3.38. The Appellant submits as demonstrated above, in the instant case, the Assessing Officer has inquired and called for all necessary details and the same can be seen from the host of documents, submissions filed by the Appellant. Thus, ....
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...., could have arrived at such a conclusion, the very initiation of revision proceedings is without jurisdiction. 3.44. It is an equally well-settled principle of law that the Ld. PCIT cannot initiate proceedings with a view to embarking upon fishing and roving enquiries in the matters or orders which have already finality. Such an action would run counter to the well accepted policy of law that there must be a point of finality in all legal proceedings; that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce, repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. 3.45. Reliance in this regard is drawn to the decision of the Hon'ble Jurisdictional High Court in case of Gabriel India Ltd (supra) wherein the Hon'ble Jurisdictional High Court held as under: "...... 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 sa....
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....de India, would lead to the order being erroneous and prejudicial to the interest of the revenue. The claim of the assessee has been that the reimbursements have been made on actual basis, without any involvement of profit element, and even the Commissioner has not disputed the same. The Commissioner's grievance has been that even if there is a reimbursement element, without involvement of profit, still adjustments have to be made to the export turnover. In view of the undisputed reimbursement aspect, it is not really necessary to doubt that even other foreign exchange expenses must involve some expenses in connection with delivery of software. It is also important to note that the nature of services are not such that there has to essentially expenses on site or in delivery, as the services are being rendered in the Indian unit and the output is being merely transmitted to the S & P's facility in USA. All these facts are not such that they call for, provoke or reasonably trigger further enquiry. Carrying out further probe into the nature of expenses, no matter how desirable, is not an essential corollary to the facts presented to the Assessing Officer. Learned Commissioner&....
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.... quash the impugned revision order as devoid of jurisdiction. The assessee gets the relief, accordingly. (Emphasis supplied) 3.47. Reliance is also placed on following judicial precedents wherein it is held that revision cannot be based on suspicions: Arul Industries v. ACIT ((2025) 177 taxmann.com 607 (Madras HC)) (Pura 18) Chaitalee Sachin Deokar v. CIT(IT) [ITA No.2806 of 2024 (Mumbai Tribunal)) (Para 11) Pawan Kumar v. ΙΤΟ [(2022) 196 ITD 378 (Chandigarh Tribunal)] In view of the above, the Appellant submits that action of the PCIT be set-aside as there would be no finality with respect to concluded proceedings. Proposition 5: PCIT must record the lapse or failure on the part of the Assessing officer to justify further inquiry and remand: 3.48. In the instant case, as is evident from Para 15 of the PCIT's order, PCIT has merely set-aside the matter to the file of the Assessing Officer to pass a fresh order in accordance with law after making necessary enquiries. However, the PCIT has failed to specify the nature of the enquiries to be undertaken or documents to be verified or looked into so a....
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.... required to be carried out was not done before invoking Explanation 2 to section 263 of the Act: 3.49. The Appellant submits that PCIT is to point out as to what inquiry or verification ought to have been carried out was not carried out and thus, the case falls within the ambit of Explanation a to section 263 of the Act. In this regard reliance is placed to the decision of Hon'ble Punjab & Haryana High Court in case of PCIT v. Kanin (India) [(2022) 141 taxmann.com 83] wherein it is held as under: "11. The contention of Ld. Senior Standing Counsel that the order passed by the Assessing Officer will fall within the ambit of Explanation 2(a) appended to section 263 of the Act, cannot be accepted till it is pointed out as to which inquiry or verification was not made by the Assessing Officer before passing the order. 12. Ld. Counsel for the appellant is not in a position to point out as to what are those inquiries or verification which should have been made but have not been made by the Assessing Officer in the present case as to make the present case fall within Explanation 2 attached to section 263 of the Act." (Emphasis supplied) 3.50. Fur....
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....passed the order u/s.263 of the Act. This is not a case of inadequacy of enquiry. It is a case of absence of enquiry. On this ground alone, the order passed u/s.263 of the Act by the Id. Pr.CIT is liable to be annulled and we do so (Emphasis supplied) 3.52. The aforesaid decision is affirmed by the Hon'ble Orissa High Court in case of PCTT v. Earth Minerals Co. Ltd. ((2024) 162 taxmann.com 272]. SLP dismissed in [(2024) 162 taxmann.com 273) Reliance in this regard is placed on the decision of the Hon'ble Delhi High Court rendered in case of PCIT v. Delhi Airport Metro Express (P.) Ltd [(2017) 398 ITR 8 (Delhi HC)] (Para 10) 3.53. "10.....In fact, if the Principal Commissioner of Income-tax is of the view that the Assessing Officer did not undertake any inquiry, it becomes incumbent on the Principal Commissioner of Income-tax to conduct such inquiry. All that the Principal Commissioner of Income-tax has done in the impugned order is to refer to the circular of the Central Board of Direct Taxes and conclude that "in the case of the assessee-company, the Assessing Officer was duty-bound to calculate and allow depreciation on the BOT in conformity ....
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.... of the assessee; however, we are not convinced with the same, since the application of funds could not be demonstrated before us to establish that the funds were utilised towards the working capital requirements of the assessee-company, mere reliance on the board resolution stating the purpose of loan, itself would not be enough to established the actual utilisation of the funds. Further mentioning for general business needs, does not restrict the assessee to use it only for revenue expenditure and not for capital assets. Moreover, as there was no enquiry by the Ld. AO on this aspect during the course of assessment proceedings, the finding of the Ld. PCIT, to this extent, cannot be regarded as erroneous. Accordingly, insofar as the issue relating to capitalisation of interest is concerned, we find substance in the finding of the Ld. PCIT in setting aside the issue to the file of the AO for fresh examination. We, therefore, uphold the same. 16. Coming to the issue of TDS on interest payments made to Government authorities, we find that the assessee had furnished the necessary details before the Ld. PCIT. The amounts in question comprised late-payment interest/penalty, BNP CC int....
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....ntation, subscription fee etc. (ii) Assessee provided sample invoices, details of TDS deducted on such payments of miscellaneous expenses. In view of above facts, the contention of the assessee against the proposed disallowance of Rs. 15,06,04,165/- towards miscellaneous expenses is accepted and proposed addition is withdrawn." 20. In terms of the aforesaid noting, the learned AO, after considering the submissions of the assessee, was satisfied with the explanation furnished and accepted the issue relating to miscellaneous expenditure in toto, thereby withdrawing the proposed addition. Thus, a final view had been taken by the learned AO after examining the issue during the course of assessment proceedings. Such a view, having been taken upon due examination of the matter, could not be disturbed by the learned PCIT at this stage merely by invoking the provisions of section 263 of the Act. Accordingly, the direction of the learned PCIT to the extent of requiring re-examination of the miscellaneous expenditure amounting to Rs. 2,30,57,711/- is modified and directed to be to be removed. 21. Coming to the issue regarding service provider charges amounting to Rs. ....
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....ecialty Polymers France, SAS Managerial, Technical and Consultancy Services Solvay Specialty Polymers USA, LLC Managerial, Technical and Consultancy Services Solvay Specialty Polymers Belgium SA Managerial, Technical and Consultancy Services Solvay Solutions UK Limited Managerial, Technical and Consultancy Services Solvay Inc USA Managerial, Technical and Consultancy Services Assessee has provided the copy of invoices, Bank statement reflecting payments to above parties, and copy of service agreements signed with above parties. The services provided by above parties are covered u/s. 9(1)(vii) of the Income tax Act, 1961 as fees for technical services. The rate of TDS as per section 115A of the Act on these services is 10%. However, the relevant DTAA with the countries in which above parties are resident has "Make Available" clause and as per said clause it is important to examine whether assessee is able to use such services in future without assistance of service provider. In the "Instant case, it is noted that assessee has been paying for these service in previous years too and assessee is dependent on the service provider for every ti....
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....er the way the order is drafted; iii. Proposition 3: Distinction between 'lack of inquiry' and 'inadequate inquiry'; iv. Proposition 4: Revision proceedings ought not to be resorted for fishing and roving inquiries; v. Proposition 5: PCIT must record the lapse or failure on the part of the Assessing Officer to justify further inquiry and remand; vi. Proposition 6: PCIT should point out the inquiry or verification required to be carried out was not done before invoking Explanation 2 to Section 263 of the Act; vii. Proposition 7: In absence of inadequate inquiry, it was incumbent on PCIT to carry out some minimal inquiry. 26. We have carefully considered the aforesaid propositions advanced by the learned Counsel for the assessee and are of the considered view that, in respect of the issue relating to capitalization of interest expenditure, the matter warrants revision and re-adjudication by the learned AO, as the impugned assessment order satisfies the twin conditions prescribed under section 263 of the Act, namely, that it is erroneous insofar as it is prejudicial to the interests of the Revenue. Since no enquiry was conducted by the l....
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....us 9.000.00 9,000.00 MUMBAI N M The ahuge loan (iken for general corporate purpose, carries an interest rate of 4 9-255% and is depayable during the year ending 31 March 2022 Mump 21-200011. ® Iva Mc NOS * N C4 Document 2 Certified True Copy Of The Resolution Passed At The Meeting Of Board Of Directors Of The Company Held On 10th June 2015 At the Registered Office Of The Company At Phoenix House, A Wing, 4th Floor, 462, Senapati Bapat Marg, Lower Parel (West), Mumbai - 400 013 "RESOLVED THAT the Company do approach promoter shareholder for availing External Commercial Borrowings (ECB) to the extent of Rs. 90,00,00,000 for a period of 7 years for meeting general business purpose needs of the Company; RESOLVED FURTHER THAT the rate of interest shall be MIFOR + spread as per benchmarking; RESOLVED FURTHER THAT any Director of the Company, Mr. Ramanuj Kankani and Mr. Neeraj Mishra be and are hereby severally authorized to execute the agreements, deeds, documents, and letters with promoter shareholder; RESOLVED FURTHER THAT any Director of the Company, Mr. Ramanuj Kankani and Mr. Neeraj Mishra be and are hereby severally authorized to submit....