2018 (5) TMI 2056 - AT - Income Tax

Revision u/s 263 - AO has not discussed the issue with respect to levy of interest U/s.234A(3) of the Act and the issue with respect to crystallization of the expense incurred towards wage arrears - HELD THAT - AO has not examined the agreement between the assessee and its employees with respect to the wage arrears, the terms conditions of the employment of the assessee s employees etc. In these circumstances, we are of the considered view that the Ld.PCIT was very much right in his realm to invoke his jurisdiction U/s.263 of the Act by relying on the decisions cited in his order. It is pertinent to mention that the decisions relied by the Ld.AR is not applicable to the facts of the case of the assessee because in the case of the assessee, the Ld.AO has omitted to examine certain material facts which might influence while deciding the issues. Therefore we hereby sustain the order of the Ld.PCIT U/s.263 of the Act. However we also hereby direct the Ld.AO to examine the issues without being prejudiced by the order of the Ld.PCIT and pass appropriate order based on merits and law after affording sufficient opportunity to the assessee of being heard. Appeals filed by the assessee are dismissed.

Summary

Issues Involved:
Jurisdiction under Section 263 of the Income Tax Act regarding assessment years 2009-10 and 2010-11.

Analysis:
The appeals were against orders passed by the Principal Commissioner of Income Tax (Appeals) invoking jurisdiction under Section 263 of the Act for the assessment years 2009-10 and 2010-11. The crux of the issue was the alleged error in invoking this jurisdiction. The assessee, a cooperative bank, initially filed returns for both years, which were subsequently revised. The Assessing Officer (AO) made additions for non-deduction of tax at source towards interest payments above a certain threshold for both years. The Principal Commissioner of Income Tax (PCIT) invoked jurisdiction under Section 263 for reasons including the omission to charge interest under Section 234A(3) and the deduction claimed for provision for wage arrears, which was deemed contingent.

The assessee argued that the conditions for invoking Section 263 were not met, citing various legal precedents. They contended that the provision for wage arrears had crystallized during the relevant assessment years, and therefore, there was no error in the AO's order prejudicial to the assessee's interest. On the other hand, the Departmental Representative (DR) argued that the issues were not discussed by the AO, as pointed out by the PCIT, who directed the AO to verify and pass an appropriate order. The Tribunal observed that the AO had not discussed the issues of interest levy and crystallization of wage arrears, nor examined the relevant agreements and terms.

The Tribunal upheld the PCIT's order under Section 263, noting that the AO had omitted to examine crucial facts that could impact the decision on the issues. The Tribunal found the PCIT's invocation of jurisdiction appropriate based on the cited legal decisions. It clarified that the legal precedents relied upon by the assessee were not applicable in this case due to the AO's failure to consider material facts. The Tribunal dismissed the appeals but directed the AO to re-examine the issues independently and pass a new order after providing a fair hearing to the assessee.