2015 (4) TMI 221 - AT - Income Tax

Validity of revision u/s 263 - CIT rejected the books of accounts - Assessee has taken new unsecured loan and AO has obtained confirmation only Bank A/c of lender has not been obtained to examine the creditworthiness - Assessee has paid designing charges and it is not enquired as to whether TDS was made on these payments - A.O. has not taken any details nor made any enquiry on a/c of fire loss claimed - Duty draw back is set off totally & negligible profit is shown Held that - Unable to see whether the CIT provided opportunity of being heard to the assessee which is paramount and mendatory requirement of the Act prior to invoke provision of Sec. 145(3). The CIT rejected books of accounts by pointing out that the business results could not be ascertained or verified in the absence of bills, vouchers and other relevant records to support the same. The CIT also noted that the stock details are not verifiable as raw material are given in weight while finished goods in nos. and size of finished goods is also not given. The deficiencies as noted by the CIT cannot held inclusive until and unless the assessee is provided due opportunity of being heard to explain his stand which has not been granted by the CIT. Thus the CIT rejected books of accounts of the assessee in a unjustified manner and rejection of books and estimation of net profit in pursuant to it and enhancing the assessment without affording due opportunity of hearing to the assessee is not only against the scheme of the Act but also violative to the principles of natural justice and hence, conclusion of CIT is not sustainable cannot be held as valid in this regard. See B.S.Sangwan (2015 (1) TMI 1011 - ITAT DELHI) - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the order passed by the Commissioner of Income Tax (CIT) under Section 263 of the Income Tax Act, 1961.
2. Whether the CIT provided a reasonable opportunity to the assessee to represent the case.
3. Appropriateness of invoking the provisions of Section 145(3) and assessing the net profit at 5% of the gross turnover.
4. Alleged double addition/taxation due to the CIT's directions.

Issue-wise Analysis:

1. Validity of the Order Passed Under Section 263:
The assessee challenged the CIT's order dated 28.03.2013, arguing that the assessment order dated 05.10.2010 was not erroneous and prejudicial to the interest of the revenue. The Tribunal noted that the CIT pointed out four specific issues in the notice issued under Section 263: unsecured loan from M/s Kabir Oldtex, payment of designing charges, reduction in purchases due to fire loss, and duty drawback. However, the CIT's final order included additional directions not mentioned in the notice, such as examining the entire amount of sundry creditors and estimating the net profit at 5% of the gross turnover. The Tribunal relied on the decision in B.S. Sangwan Vs. ITO, which held that a revisional order under Section 263 can only be passed on the grounds mentioned in the notice. Consequently, the Tribunal quashed the CIT's order for including grounds not specified in the notice, rendering it invalid and unsustainable.

2. Reasonable Opportunity to the Assessee:
The assessee contended that the CIT did not provide a reasonable opportunity to represent the case, completing the proceedings ex-parte and violating principles of natural justice. The Tribunal observed that the CIT issued a reminder and passed an ex-parte order without affording the assessee an opportunity to explain the discrepancies noted. This lack of opportunity was deemed a violation of natural justice, further invalidating the CIT's order.

3. Invoking Provisions of Section 145(3) and Net Profit Assessment:
The CIT invoked Section 145(3) to reject the assessee's books of accounts, citing deficiencies such as unverifiable stock details and lack of supporting records. The CIT then directed the AO to estimate the net profit at 5% of the gross turnover. The Tribunal found that the CIT's rejection of the books and estimation of net profit were done without providing the assessee an opportunity to be heard, which is a mandatory requirement. This action was deemed unjustified and against the scheme of the Act, making the CIT's conclusion unsustainable.

4. Alleged Double Addition/Taxation:
The assessee argued that the CIT's directions resulted in double addition/taxation. The Tribunal noted that the AO, in the re-assessment order, did not make any additions on the four issues raised by the CIT but instead made additions on other grounds not mentioned in the notice under Section 263. This inconsistency further supported the Tribunal's decision to quash the CIT's order.

Conclusion:
The Tribunal quashed the CIT's order under Section 263 and all subsequent proceedings and orders passed pursuant to it. Grounds 1 and 2 of the assessee's appeal were allowed, while grounds 3 and 4 were dismissed as infructuous due to the quashing of the impugned order. The appeal of the assessee was allowed on legal grounds.