2012 (11) TMI 617 - AT - Income Tax

Validity of Order by CIT u/s 263 The assessment order has been passed by earlier AO, i.e., ACIT, while said jurisdiction was already transferred to Addl.CIT - Whether the CIT can set aside such an order by invoking provisions of section 263 Held that - The CIT has clearly observed that order of Assessing Officer dated 7-09-09 is non est because jurisdiction of this case was already transferred to Additional CIT Satara range on 04-09-2007. The CIT further observed that order of Assessing Officer is set-aside as an abundant precaution. The assessment order has been passed by earlier Assessing Officer, i.e., ACIT of Satara Circle, Satara, while said jurisdiction was already transferred to Addl.CIT, Satara Range, Satara, w.e.f. 04-09-2009. In such situation, order passed by ACIT, Satara Circle, is illegal order. Now question arises as to whether the CIT can set aside such an order by invoking provisions of section 263 of the Act. In our opinion the answer is in the affirmative. It is not in dispute that the concern Assessing Officer was not having jurisdiction over the matter due to transfer of jurisdiction discussed above. In case such illegal order passed by the Assessing Officer being erroneous and prejudicial to revenue, is not set aside, it will amount to perpetuation of error. - Once order of ACIT in question is not quashed, the order passed by successor Assessing Officer will go infructuous. It will enhance the mischief. - Decided in favor of revenue.

Issues Involved:
1. Justification of invoking Section 263 by CIT.
2. Jurisdiction of ACIT Satara Circle on the date of assessment.
3. Examination of various aspects by the Assessing Officer for proper determination of income.
4. Confirmation of creditors and debtors.
5. Applicability of Section 40A(2)(b).
6. Interest charged on loans to related persons.
7. Taxability under Wealth Tax Act.
8. Adequacy of drawings towards household expenses.
9. Consideration of past search and seizure operations.

Detailed Analysis:

1. Justification of Invoking Section 263 by CIT:
The CIT invoked Section 263 to cancel the assessment order passed by ACIT, Satara Circle, arguing it was "erroneous and prejudicial to the interests of revenue." The CIT found that the Assessing Officer did not examine various necessary aspects for proper income determination, rendering the order erroneous and prejudicial to the revenue.

2. Jurisdiction of ACIT Satara Circle on the Date of Assessment:
The jurisdiction over the case was transferred from ACIT, Satara Circle to Addl. CIT, Satara Range on 04-09-2009. Despite this, the assessment order was passed by ACIT on 07-09-2009. The CIT argued that the order was without jurisdiction and non-est (not existing in law). The Tribunal upheld this view, stating that the order passed by an officer without jurisdiction is illegal.

3. Examination of Various Aspects by the Assessing Officer for Proper Determination of Income:
The CIT noted that the Assessing Officer failed to examine several critical aspects, which warranted enquiry for correct income determination. These included confirmation of creditors and debtors, applicability of Section 40A(2)(b), interest charged on loans, taxability under the Wealth Tax Act, adequacy of drawings towards household expenses, and consideration of past search and seizure operations.

4. Confirmation of Creditors and Debtors:
The CIT observed that the Assessing Officer did not obtain confirmation of creditors and debtors despite it being required for correct income determination. The Tribunal agreed that this lack of enquiry rendered the assessment order erroneous.

5. Applicability of Section 40A(2)(b):
The CIT pointed out that the Assessing Officer did not verify whether purchases from a sister concern were made at market rates, especially given the fall in GP declared by the assessee compared to earlier years. The Tribunal upheld this observation, noting that the Assessing Officer's failure to examine this issue rendered the order erroneous.

6. Interest Charged on Loans to Related Persons:
The CIT noted that the Assessing Officer did not examine the interest on loans advanced to related persons. The Tribunal agreed that this lack of enquiry made the assessment order erroneous and prejudicial to the revenue.

7. Taxability under Wealth Tax Act:
The CIT observed that the Assessing Officer did not examine the issue of cash on hand as it related to wealth tax liability. The Tribunal upheld this observation, noting that the failure to examine this issue rendered the assessment order erroneous.

8. Adequacy of Drawings Towards Household Expenses:
The CIT found that the Assessing Officer did not adequately examine the drawings towards household expenses, which appeared low for a family of five. The Tribunal agreed that this lack of enquiry rendered the assessment order erroneous.

9. Consideration of Past Search and Seizure Operations:
The CIT noted that the Assessing Officer did not consider the modus operandi unearthed during past search and seizure operations. The Tribunal upheld this observation, agreeing that the failure to consider this rendered the assessment order erroneous.

Conclusion:
The Tribunal upheld the CIT's order under Section 263, agreeing that the assessment order was erroneous and prejudicial to the interests of revenue due to the lack of necessary enquiries by the Assessing Officer. The appeals filed by the assessees were dismissed.

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