2010 (8) TMI 988 - AT - Income Tax

Revision u/s 263 - non-verification of raw material - HELD THAT - the observations of learned CIT that certain vouchers were still unverifiable appears to be based on mere assumption and mere assumption is not sufficient to hold that assessment order is erroneous. Therefore, we hold that in the present case there is no incorrect assumption of facts and there is no incorrect application of law so as to make the assessment order passed by the AO as erroneous. so far as it relates to the issue regarding invocation of power u/s 263 with regard to non-verification of raw material purchases to the tune of ₹ 1,94,66,944, we hold that the power has wrongly been exercised by CIT u/s 263. In regard to donation - HELD THAT - it is observed that the said mistake was rectified by the AO much prior even to the show-cause notice issued by learned CIT. The said mistake was rectified by the AO vide order passed u/s 154 dt. 22nd May, 2008 whereas the show-cause notice issued by the CIT is dt. 2nd March, 2010. Thus, the said ground cannot be said to be subject-matter of s. 263 as the said issue was not existing on the date when CIT has initiated the proceedings u/s 263. regard to claim of depreciation - HELD THAT - it is observed that the AO had raised specific query with regard to user of the asset on which the assessee had claimed depreciation and the replies were also given by the assessee to the AO. The AO being satisfied with the reply has accepted the claim of the assessee regarding depreciation. Learned CIT in his order has nowhere specified that which part of the machinery was not utilized by the assessee for whole of the year and to pinpoint that how the claim of the assessee regarding depreciation was wrongly decided by the AO. In the absence of any such material, the ratio applied by us in respect of the issue regarding raw material purchase will be fully applicable to this issue also and applying the same reasons we hold that learned CIT was wrong in invoking the s. 263 on the issue of depreciation. Therefore, we are of the opinion that learned CIT has wrongly invoked s. 263 to the case of the assessee. Therefore, the impugned order passed u/s 263 is set aside and the assessment order, which is neither erroneous nor prejudicial to the interest of Revenue, is restored.

Issues Involved:
1. Jurisdictional validity of the CIT's order under Section 263.
2. Verification of raw material purchases.
3. Verification of donation expenses.
4. Verification of fixed assets and depreciation claims.

Detailed Analysis:

Jurisdictional Validity of the CIT's Order under Section 263:
The assessee challenged the jurisdictional basis of the CIT's order under Section 263, arguing that the CIT acted without fulfilling the necessary jurisdictional conditions. The assessee contended that the grounds for the show-cause notice were not indicative of the required jurisdictional conditions and that the original assessment order was neither erroneous nor prejudicial to the interest of the Revenue.

Verification of Raw Material Purchases:
The CIT invoked Section 263 on the grounds that expenses related to raw material purchases amounting to Rs. 1,94,66,944 were not verified, and the bills and vouchers for these purchases were not verifiable. The assessee countered by stating that during the original assessment, the AO had called for and verified the details of purchases amounting to Rs. 20,77,49,195. The AO had identified certain discrepancies, leading to an agreed addition of Rs. 17,62,253.50 for unverifiable purchases. The Tribunal found that the AO had indeed verified the purchases and identified unverifiable vouchers, making the assessment neither erroneous nor prejudicial to the Revenue. The CIT failed to specify how the figure of Rs. 1,94,66,944 was derived or which vouchers were unverifiable, leading the Tribunal to conclude that the CIT had wrongly exercised his powers under Section 263.

Verification of Donation Expenses:
The CIT also invoked Section 263 on the grounds that a donation expense of Rs. 13,000 debited to the Profit and Loss account was not verified. The assessee pointed out that the AO had already rectified this issue under Section 154 on 22nd May 2008, prior to the CIT's show-cause notice dated 2nd March 2010. Therefore, the Tribunal held that this issue could not be the basis for invoking Section 263 as it was not existing at the time of the CIT's action.

Verification of Fixed Assets and Depreciation Claims:
The CIT contended that the AO allowed depreciation on fixed assets without verifying whether the machinery was put to use during the whole year. The assessee argued that the AO had raised specific queries regarding the usage of assets and the replies were satisfactory. The Tribunal noted that the CIT did not specify which part of the machinery was not utilized or how the AO's decision was incorrect. The Tribunal applied the same reasoning as with the raw material purchases and concluded that the CIT had wrongly invoked Section 263 on this issue.

Conclusion:
The Tribunal set aside the CIT's order under Section 263, restoring the original assessment order. The Tribunal found that the AO had conducted a thorough verification of the issues raised and that the assessment order was neither erroneous nor prejudicial to the interest of the Revenue. The appeal filed by the assessee was allowed.

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