2015 (9) TMI 1294 - AT - Income Tax

Revision u/s 263 - whether the CIT in exercise of his powers vested under Section 263 can revise that reassessment order with the intention of bringing into the tax some other items which do not form part of the reasons recorded at the time of issuing notice under Section 148? - Held that - The identical issue had come up before the Hon ble Jurisdictional High Court in the case of CIT Vs. Software Consultants, 2012 (2) TMI 18 - DELHI HIGH COURT wherein the Hon ble Jurisdictional High Court after considering the ratio laid down in the case of Ranbaxy Laboratory Ltd. 2011 (6) TMI 4 - DELHI HIGH COURT and CIT Vs. Jet Airways (I) Ltd., 2010 (4) TMI 431 - HIGH COURT OF BOMBAY and CIT Vs. Shri Ram Singh, 2008 (5) TMI 200 - RAJASTHAN HIGH COURT held that when no addition was made regarding the item in respect of which reasons were recorded for reopening of the assessment, the Commissioner could not exercise his jurisdiction under Section 263 of the Act in order to bring to tax other items of additions. Respectfully following the ratio laid down in the above case, we hold that in the present case also the Commissioner of Income Tax is not justified in exercising the power under Section 263 of the Act. - Decided in favour of assessee.

Issues:
1) Jurisdiction of Principal Commissioner to initiate proceedings under Section 263.
2) Validity of order passed under Section 263 by Principal Commissioner.
3) Error in initiating proceedings under Section 263 based on incorrect facts.
4) Incorrectness of holding the order passed by the Assessing Officer as erroneous and prejudicial to revenue.
5) Sending the matter back to the Assessing Officer for re-examination.

Analysis:

1) The appeal challenged the order of the Principal Commissioner of Income Tax-VII, New Delhi, passed under Section 263 for the assessment year 2006-07. The appellant contended that the Principal Commissioner wrongly assumed jurisdiction to initiate proceedings under Section 263. The appellant raised concerns about the factual and legal grounds of the order passed under Section 263, stating that the observations made were either factually incorrect or legally untenable. The appellant argued that the Principal Commissioner erred in initiating proceedings based on incorrect facts, which led to the order being deemed erroneous and prejudicial to the interests of revenue. Additionally, the appellant challenged the decision to send the matter back to the Assessing Officer for re-examination, claiming that it was based on incorrect or legally untenable observations.

2) The case involved a company whose return of income for the assessment year 2006-07 was reopened by the Assessing Officer based on information from a survey operation. The appellant received accommodation entry of Rs. 4 lakhs, leading to the reopening of the assessment. The reassessment was completed without any addition on the item for which the assessment was reopened. Subsequently, the Principal Commissioner issued a show cause notice under Section 263, questioning the genuineness of share application money received. The appellant argued that the issue was examined during reassessment, providing details and confirmation letters. However, the Principal Commissioner set aside the assessment for fresh examination of the share application money issue.

3) The appellant's counsel argued that the Assessing Officer had already examined the share application money issue during reassessment and concluded it was genuine. The appellant provided details and confirmation letters to support this claim. The Counsel contended that the Principal Commissioner cannot substitute his opinion for that of the Assessing Officer under Section 263. The Counsel referred to specific queries raised by the Assessing Officer during reassessment and the appellant's responses, highlighting the thorough examination of the issue.

4) The Tribunal deliberated on whether the Principal Commissioner validly exercised the power of revision under Section 263. Referring to the reasons for reopening the assessment, it was noted that no addition was made regarding the item for which the assessment was reopened. Citing precedents, the Tribunal held that the Principal Commissioner could not revise the reassessment order to bring in other items not part of the original reasons for reopening. Following the jurisprudence, the Tribunal concluded that the Principal Commissioner was not justified in exercising power under Section 263, ultimately quashing the order passed by the Principal Commissioner.

5) As a result of allowing the appeal on merit, the stay application filed by the appellant became infructuous. The Tribunal pronounced its decision on 4th September 2015, granting full relief to the appellant by allowing the appeal.

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