2016 (5) TMI 48 - AT - Income Tax

Revision u/s 263 - estimation of net profit - Held that - Unless the A.O s order is erroneous, no action can be taken by the CIT u/s 263 of the Act. This is because, the twin conditions i.e. the order is erroneous and the same is also prejudicial to the interest of the revenue are co-exists. In the present case on hand, on examination of the records, we find that the A.O. has conducted enquiry on the issue of estimation of net profit. The assessing officer after verification of books of accounts and other relevant details has adopted 4% net profit on net purchases, which cannot be termed as erroneous. The contention of the CIT was that the A.O. has not applied the jurisdictional High Court judgments and also ITAT judgement while estimating the net profit. Therefore, the order passed by the A.O. is without application of mind. We do not see any merits in the arguments of the CIT, for the reasons that there is a distinction between lack of enquiry and inadequate enquiry, if there is an inadequate enquiry that would not by itself give occasion to the CIT to assume jurisdiction u/s 263 of the Act, merely because he has a different opinion. Therefore, we are of the opinion that in the present case on hand, there is no reason for the commissioner to revise the assessment order, as the A.O. has verified the issue and estimated the net profit.. In this case, there cannot be any dispute that A.O. has not discussed the issue at the time of completion of the assessment. The net profit adopted by the A.O. is correct or not is a debatable question. The Ld. CIT has not pointed out any mistakes in such estimation to say that it is erroneous and prejudicial to the interest of the revenue. Therefore, we are of the opinion that the assessment order passed by the A.O., in respect of estimation of net profit is not erroneous, in so far as prejudicial to the interest of the revenue. On examination of the assessment order and CIT order, we find that the issue of unsecured loans and capital introduction by the assessee were not examined by the A.O. at the time of completion of assessment. Therefore, we are of the opinion that the assessment order passed by the A.O., in respect of unsecured loans and capital introduction is erroneous in so far as it is prejudicial to the interest of the revenue. Accordingly, we uphold the CIT order and set aside the assessment order passed by the A.O. u/s 143(3) of the Act, in respect of unsecured loans and capital account. Accordingly, the order passed by the CIT u/s 263 of the Act is modified, so as to reject the CIT order in respect of estimation of net profit and uphold the action of the CIT, in respect of unsecured loans and capital account is concerned. - Decided partly in favour of assessee

Summary

Issues Involved:
1. Estimation of Net Profit
2. Verification of Unsecured Loans
3. Verification of Capital Introduction

Issue-wise Detailed Analysis:

1. Estimation of Net Profit:
The CIT issued a show-cause notice under Section 263 of the Income Tax Act, 1961, proposing to revise the assessment order. The CIT observed that the Assessing Officer (A.O.) estimated the net profit at 4% on net purchases without considering the ratios established by the jurisdictional ITAT and High Court. The CIT contended that the A.O. should have estimated sales at 8 times the purchase price and then estimated the net profit at 1% of such sales, as per the case of ACIT Vs. M/s. M. Veerabhadra Rao & Others. The CIT's opinion was that the A.O.'s method rendered the assessment order erroneous and prejudicial to the revenue's interest.

In response, the assessee argued that the A.O. had duly considered all relevant details and explanations before estimating the net profit at 4%. The assessee also highlighted that the business activities and profit margins in trading IMFL (Indian Made Foreign Liquor) differ significantly from those in trading arrack, as cited in the case laws relied upon by the CIT.

Upon review, it was determined that the A.O. had indeed conducted a proper enquiry and considered the books of accounts and other relevant details before estimating the net profit. The Tribunal concluded that the CIT was incorrect in assuming jurisdiction under Section 263 for this issue, as the A.O. had taken one of the possible views, making the assessment order neither erroneous nor prejudicial to the revenue's interest. The Tribunal emphasized that the CIT cannot revise an assessment order simply because they hold a different opinion, especially when the A.O. has conducted an adequate enquiry.

2. Verification of Unsecured Loans:
The CIT observed that the A.O. failed to examine the identity, genuineness, and creditworthiness of the creditors for the unsecured loans shown by the assessee. The CIT argued that this lack of verification rendered the assessment order erroneous and prejudicial to the revenue's interest.

The assessee admitted that the A.O. had not specifically verified the unsecured loans during the assessment proceedings. The Tribunal agreed with the CIT's observation, noting that the A.O. did not conduct a proper enquiry into the unsecured loans. Consequently, the Tribunal upheld the CIT's decision to revise the assessment order concerning the verification of unsecured loans.

3. Verification of Capital Introduction:
The CIT also noted that the A.O. did not examine the sources of the fresh capital introduced by the assessee during the assessment year. The CIT highlighted that the A.O. failed to verify the sources for the payment of license fees and deposits kept in the bank for obtaining a bank guarantee.

The assessee conceded that the A.O. had not verified the sources of the capital introduction. The Tribunal found merit in the CIT's observation and upheld the revision of the assessment order concerning the verification of capital introduction.

Conclusion:
The Tribunal partially allowed the assessee's appeal. It rejected the CIT's order concerning the estimation of net profit, affirming that the A.O. had conducted a proper enquiry and taken a plausible view. However, the Tribunal upheld the CIT's order regarding the verification of unsecured loans and capital introduction, agreeing that the A.O. had not adequately examined these issues.

Separate Judgments:
The facts and issues in ITA No.194 of 2012 were identical to ITA No.191 of 2012. Therefore, the Tribunal's decision in ITA No.194 of 2012 mirrored the conclusions reached in ITA No.191 of 2012, resulting in a partial allowance of the appeal.