2015 (4) TMI 791 - AT - Income Tax

Revision of assessment order - Claim of provision for development expenses - Held that - The first finding of the ld. CIT is to the effect that assessment order has been passed in a casual manner and without application of mind. In our consideration with the above correspondence, evidence and discussions during the course of assessment proceedings do not substantiate these adverse observations of ld. CIT. Consequently we are unable to agree that assessment order is erroneous or prejudicial to the interest of revenue on this score. The allowability of JDA development charges as business expenditure, ld. CIT has no objection on assessee s following mercantile system of accounting in that eventuality even the accrued liabilities are to be allowed. Assessee has demonstrated that per square yard working of JDA expenses was provided to ld. AO during the assessment proceedings which is part of the record. Once the liability is accrued as per JDA circulars and AO allows the claim based on working provided by assessee; it demonstratively means that AO allowed the claim after due application of mind. Ld. CIT has not even disputed that liability is allowable as clearance has been give about liability qua the sale proceeds offered. It has been lost sight of that assessee follows mercantile method, liability is statutory and working of quantum is provided. With all this available on record we hold that the assessment order can neither be called as erroneous or prejudicial to the interest of revenue. Our views are fortified by the catena of judgment in DLF Ltd. 2012 (9) TMI 626 - DELHI HIGH COURT ,Max India Ltd. 2007 (11) TMI 12 - Supreme Court of India and Malabar Industrial Co. Ltd. 2000 (2) TMI 10 - SUPREME Court , consequently the 263 order is quashed and assessee s grounds are allowed. - Decided in favour of assessee.

Issues Involved:
1. Legality and jurisdiction of the order passed under Section 263 of the Income Tax Act.
2. Whether the order passed under Section 143(3) by the Assessing Officer (AO) was erroneous and prejudicial to the interest of revenue.
3. Justification for invoking Section 263 proceedings and setting aside the AO's order.
4. Validity of the CIT's directive to the AO for verifying the claim of provision for development expenses.

Issue-wise Detailed Analysis:

1. Legality and Jurisdiction of the Order Passed Under Section 263:
The assessee contended that the order passed under Section 263 by the CIT was illegal, bad in law, and without jurisdiction. The assessee argued that the AO had examined the issue of provision for development expenses in detail during the assessment proceedings and had made several queries, which were duly replied to by the assessee. The CIT, however, rejected these contentions and held that the AO had passed the order in a casual manner without considering the relevant provisions of the Act, thereby making the order erroneous and prejudicial to the interest of revenue.

2. Whether the Order Passed Under Section 143(3) by the AO was Erroneous and Prejudicial to the Interest of Revenue:
The CIT issued a show cause notice under Section 263, alleging that the provision for development expenses amounting to Rs. 1,46,08,190 was not allowable as per the provisions of the Income Tax Act, which only allow expenses actually incurred. The CIT held that the AO had not examined whether the provisions were made on a scientific or logical basis and thus set aside the assessment order for the limited purpose of verifying the allowability of the expenses. The assessee argued that the AO had indeed examined the issue in detail, as evidenced by the detailed correspondence and documentation submitted during the assessment proceedings. The Tribunal found that the AO had applied his mind and allowed the claim based on the working provided by the assessee, thus the assessment order could not be considered erroneous or prejudicial to the interest of revenue.

3. Justification for Invoking Section 263 Proceedings and Setting Aside the AO's Order:
The CIT invoked Section 263, setting aside the AO's order and directing the AO to verify whether the provisions were made in respect of sales affected during the year and whether the development expenses were estimated in accordance with guidelines issued by the JDA. The assessee contended that the CIT's observations were baseless and contrary to the record, which contained documentary evidence and proceedings demonstrating that the AO had passed the order after proper verification and examination of the expenditure. The Tribunal agreed with the assessee, noting that the AO had examined the issue in detail during the assessment proceedings and had allowed the claim based on the working provided by the assessee.

4. Validity of the CIT's Directive to the AO for Verifying the Claim of Provision for Development Expenses:
The CIT directed the AO to verify whether the provisions were made only in respect of sales affected during the year and whether the development expenses were estimated in accordance with JDA guidelines. The assessee argued that the CIT's findings were contrary to the record, which contained evidence demonstrating that the AO had examined the issue in detail. The Tribunal found that the AO had applied his mind and allowed the claim based on the working provided by the assessee, and thus the assessment order could not be considered erroneous or prejudicial to the interest of revenue.

Conclusion:
The Tribunal quashed the CIT's order under Section 263, holding that the assessment order was neither erroneous nor prejudicial to the interest of revenue. The Tribunal allowed the assessee's appeal, concluding that the AO had examined the issue in detail and had allowed the claim based on the working provided by the assessee. The Tribunal's decision was pronounced in the open court on 24/02/2015.

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