2016 (4) TMI 461 - AT - Income Tax

Revision u/s 263 - Held that - We are live to the provisions of Explanation (2) to Section 263 of the Act which has been introduced w. e. f. 1st June, 2015 wherein it has been explained that the order passed by the AO shall be deemed to be erroneous in so far as it is prejudicial to the interest of the Revenue if, in the opinion of the Principal Commissioner/Commissioner the order is passed without making enquiries or verification which should have been made . However, it should be understood that the word used in the said explanation is opinion of the Principal Commissioner or Commissioner and such opinion should be in writing or at least discernible from the order of the learned CIT. But, even this explanation would be controlled by the primary section of 263(1) which demands the making or causing to be made such enquiry as he deems necessary , before he passes the order u/s 263. In the present case as the said enquiry has not been made by the Commissioner not has it been caused to be made by the learned CIT either before the intimation or after the intimation but more specifically its absence has been recorded by the learned Commissioner before passing his order u/s 263 of the Act, we are of the view that the order passed u/s 263 of the Act by the learned CIT is unsustainable - Decided in favour of assessee.

Summary

Issues:
1. Appeal against order of CIT-I, Jodhpur under section 263 for assessment year 2010-11.
2. Rejection of adjournment application by the assessee.
3. Examination of details of quantity, rate, and date by the Assessing Officer.
4. Claim of additional depreciation on old plant and machinery.
5. Validity of the order passed under section 263 of the Income Tax Act.

Analysis:
1. The appeal was filed against the order of the CIT-I, Jodhpur under section 263 for the assessment year 2010-11. The assessee sought an adjournment without providing a specific reason, which was rejected. The original return for the relevant assessment year was filed on 14-10-2010, and the assessment under section 143(3) was completed on 31-01-2013. Subsequently, a notice under section 263 was issued to the assessee on 28-03-2014 regarding certain issues, including examination of details related to a specific transaction and the claim of additional depreciation on old plant and machinery.

2. The Assessing Officer had not examined certain details as per the notice issued under section 263. The assessee responded to the show-cause notice on multiple occasions. The CIT held that since the AO had not conducted the necessary inquiries during the assessment proceedings, the submissions made by the assessee could not be accepted without verification. The CIT referred to case laws and set aside the assessment order, directing the AO to examine the issues mentioned in the order. The CIT's order was challenged on the grounds of lack of specific errors pointed out and completion of all necessary inquiries.

3. The provisions of section 263(1) of the Income Tax Act were analyzed, emphasizing the Commissioner's power to call for and examine records, identify errors prejudicial to revenue, provide the assessee an opportunity to be heard, and conduct necessary inquiries. The section highlighted the importance of making or causing to be made such inquiry as deemed necessary before passing an order modifying or canceling the assessment. The section serves as a last resort provision to unsettle settled assessments, requiring a foundation of inquiry to show errors in the AO's order.

4. The judgment referenced a case supporting the view that once issues have been examined by the AO, the CIT cannot use section 263 powers to reexamine the matter. In the present case, it was noted that despite issuing a show-cause notice and receiving replies from the assessee, the CIT did not demonstrate further inquiry conducted before passing the order under section 263. The absence of necessary inquiries before the order led to the decision that the CIT's order was unsustainable and quashed.

5. The judgment highlighted the introduction of Explanation (2) to section 263 from 1st June 2015, emphasizing the need for inquiries or verifications that should have been made by the AO. However, the opinion of the Principal Commissioner or Commissioner should be in writing or discernible from the order. Even with this explanation, the primary requirement of conducting necessary inquiries before passing an order under section 263 was emphasized. As the required inquiry was not conducted or caused to be made by the CIT in this case, the order passed under section 263 was deemed unsustainable, resulting in the appeal of the assessee being allowed.