2016 (4) TMI 1429 - AT - Income Tax

Revision u/s 263 - Reopening of assessment u/s 147 order set aside by CIT - Disallowance u/s 40(a)(ia) towards payment made by assessee to one JD Fabricators and verify the claim of the assessee with regard to the payment made as claimed as purchase instead of professional charge - HELD THAT - We are totally at loss to perceive such action of the CIT. AO in exercise of quasi judicial powers and on consideration of reply of the assessee on the issue which is subject matter of agitation, has categorically recorded that the disallowances have been correctly made and no discrepancy subsists. Thus, the very issue for which S. 147 was invoked was addressed to the satisfaction of the Assessing Officer on facts. A communication by the Assessing Officer to the CIT captioned final reply in respect of internal audit objection in the case of M/s Laxminarayan Associates A.Y 2005-06 wherein it was explained to the CIT that the disallowance under S. 40(a)(ia) could not be invoked owing to its inapplicability citing objective facts CIT has not demonstrated any perversity in such conclusion on facts while invoking powers under S. 263 of the Act. Needless to say, once an enquiry on the issue has been carried out and a conclusion thereon has been arrived at by the Assessing Officer, the same cannot be interfered with under S. 263 merely because the Commissioner wants it to be carried out in particular way. Mere disagreement of the CIT with the order of the Assessing Officer would not in our view render such order erroneous . We find that it cannot be said that the Assessing Officer has acted perfunctorily while dropping the proceedings. Mere ipse dixit of the CIT is not the best foundation for invoking powers under S. 263 of the Act. We find considerable merit in the arguments canvassed on behalf of the Assessee for cancellation of the order of CIT. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of proceedings and order under section 263.
2. Jurisdiction of the CIT under section 263.
3. Dropping of proceedings under section 147/148 by the Assessing Officer.
4. Alleged non-deduction of tax at source and disallowance under section 40(a)(ia).

Issue-wise Detailed Analysis:

1. Validity of proceedings and order under section 263:
The assessee challenged the action of the CIT under section 263 of the Income Tax Act, 1961, arguing that the proceedings and the order passed by the CIT were bad in law and without jurisdiction. The assessee contended that the order passed by the Assessing Officer (AO) dropping the proceedings under section 147 was not erroneous or prejudicial to the interests of the Revenue. The CIT had issued a show-cause notice under section 263, alleging that the AO failed to disallow certain expenses under section 40(a)(ia) during the reassessment proceedings, which should have been disallowed due to non-deduction of tax at source.

2. Jurisdiction of the CIT under section 263:
The assessee argued that the CIT did not have jurisdiction under section 263 as there was no formal order passed by the AO under section 143(3) read with section 147, but merely an order sheet entry. The assessee further contended that the AO had applied his mind and made a conscious decision to drop the proceedings, and therefore, the CIT's different opinion did not grant him jurisdiction under section 263. The assessee also pointed out that the action under section 263 was time-barred if it was considered against the original order under section 143(3) dated 31.12.2007.

3. Dropping of proceedings under section 147/148 by the Assessing Officer:
The AO had initially reopened the assessment under section 147 by issuing a notice under section 148, but later dropped the proceedings after considering the assessee's detailed submissions. The AO noted that the disallowances under section 40(a)(ia) were correctly made, and there was no discrepancy. The CIT, however, observed that the AO had failed to disallow certain expenses and considered the AO's order dropping the proceedings as erroneous and prejudicial to the interests of the Revenue. The assessee argued that the AO had thoroughly examined the issue and made a conscious decision, and therefore, the CIT's action under section 263 was not justified.

4. Alleged non-deduction of tax at source and disallowance under section 40(a)(ia):
The CIT's primary contention was that the AO did not disallow certain expenses under section 40(a)(ia) for non-deduction of tax at source. The assessee, in response, argued that the AO had verified the facts and concluded that there was no discrepancy in the disallowance. The assessee also pointed out that the proceedings under section 147 were dropped after detailed verification and that the AO's decision was not erroneous. The assessee further contended that the CIT's disagreement with the AO's decision did not render the order erroneous and prejudicial to the interests of the Revenue.

Conclusion:
The Tribunal found merit in the assessee's arguments and concluded that the CIT's order under section 263 was without authority of law. The Tribunal held that the AO had conducted a proper enquiry and made a conscious decision to drop the proceedings under section 147. The Tribunal emphasized that mere disagreement of the CIT with the AO's order did not render it erroneous. Consequently, the Tribunal quashed the CIT's order under section 263 and allowed the assessee's appeal.