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2016 (3) TMI 1227 - AT - Income TaxRevision u/s 263 - Allowability of sales tax paid has not been properly examined - Held that - In the present case as can be seen from the Paper Book it cannot be said that there is no enquiry. Certainly enquiries have been conducted by the Assessing Officer with regard to the issues of sale tax. As far as adequacy of enquiry is considered there is no law which provides the extent of enquiries to be made by the Assessing Officer. It is Assessing Officer s prerogative to make enquiry to the extent he feels proper. The learned Commissioner of Income Tax by invoking revisionery powers under section 263 of the Act cannot impose his own understanding of the extent of enquiry. There are a number of judgments by various High Courts in this regard. We are not referring to the same for the sake of brevity. In this view we do not find any error in the order of the Assessing Officer.- Decided in favour of assessee.
Issues Involved:
1. Whether the assessment order dated 29.12.2011 passed by the Assessing Officer under section 153A r.w.s. 143(3) of the Income Tax Act, 1961 was erroneous and prejudicial to the interest of revenue. 2. Whether the Commissioner of Income Tax (CIT) was justified in invoking the provisions of section 263 of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Whether the assessment order dated 29.12.2011 passed by the Assessing Officer under section 153A r.w.s. 143(3) of the Income Tax Act, 1961 was erroneous and prejudicial to the interest of revenue: The case involves a search conducted under section 132 of the Act on 10.06.2009, leading to the assessee filing a return declaring income of Rs. 4,81,513/-. The assessment was completed at an income of Rs. 9,63,880/-. The CIT issued a show cause notice under section 263, claiming that the assessee had claimed an expense of Rs. 1,12,50,000/- on account of sales tax, which was allowed by the Assessing Officer. The CIT argued that this expense was not allowable and should have been disallowed, making the order erroneous and prejudicial to the interest of revenue. The assessee contended that the sales tax payable was made under the compound levy scheme and was allowable under section 43B of the Act. The assessee also argued that the issue had been examined during the original assessment proceedings and subsequent proceedings under sections 154 and 153A of the Act. The CIT rejected these contentions, stating that the Assessing Officer had not properly examined the issue of allowability of sales tax and set aside the order with directions to make a fresh assessment after proper enquiry. 2. Whether the Commissioner of Income Tax (CIT) was justified in invoking the provisions of section 263 of the Income Tax Act, 1961: The assessee appealed against the CIT's order, arguing that the assessment order was not erroneous or prejudicial to the interest of revenue and that the CIT was not justified in holding that the assessment order had been passed without proper enquiries. The assessee's counsel emphasized that the issue of sales tax had been considered by the Assessing Officer during multiple proceedings, and therefore, it could not be said that the Assessing Officer had not applied his mind to the issue. The Tribunal observed that for invoking section 263, the order must be both erroneous and prejudicial to the interest of revenue. An order is erroneous if the Assessing Officer has not made an enquiry on a relevant issue, but in this case, the Assessing Officer had conducted enquiries regarding the sales tax issue. The Tribunal noted that the CIT cannot impose his understanding of the extent of enquiry required and that the adequacy of the enquiry is the Assessing Officer's prerogative. The Tribunal also noted that the CIT had directed the Assessing Officer to make a fresh assessment de-novo, which contradicts the requirement of section 263 that the CIT must give a categorical finding regarding the error in the Assessing Officer's order. The Tribunal cited the judgment of the Hon'ble Delhi High Court in the case of ITO Vs. D.G. Housing Projects Ltd., which held that the CIT must himself conduct necessary enquiries and record a finding that the order is erroneous before invoking section 263. Conclusion: The Tribunal concluded that the CIT had not given any concrete finding on the merits of the case and had merely directed the Assessing Officer to make further enquiry. Therefore, the assumption of jurisdiction under section 263 by the CIT was not as per law. The appeal of the assessee was allowed, and the order of the CIT was set aside.
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