2017 (4) TMI 393 - AT - Income Tax

Revision u/s 263 - order erroneous and also prejudicial to the interests of the Revenue - Held that - Unless the order passed by the Assessing Officer is erroneous and also prejudicial to the interests of the Revenue, the Commissioner of Income-tax cannot assume the jurisdiction to revise the assessment order, this is because the twin conditions i.e. the order is erroneous and the same is prejudicial to the interests of the Revenue are co-exist. In the present case, the order passed by the Assessing Officer neither erroneous nor prejudicial to the interests of the Revenue as the Assessing Officer has considered all the issues and after considering the details furnished by the assessee rejected the books of account and estimated the net profit from the business. Once the net profit is estimated from the business, the question of referring to the books of account to revise the assessment order is not justified. It is the general presumption of law that the Assessing Officer has considered all the details before completion of assessment and the Commissioner of Income-tax cannot presume that enquiries conducted by the Assessing Officer is insufficient and also the Assessing Officer has not applied his mind, unless the Commissioner of Income-tax proves that the assessment order passed by the Assessing Officer is erroneous. In this case, the Commissioner of Income-tax never pointed out any specific instance of erroneous decision taken by the Assessing Officer before completion of assessment. Without pointing out any defects in the assessment order, simply directing the Assessing Officer to cause further enquiries on the presumption that the enquiries conducted by the Assessing Officer are insufficient is not permissible under the provisions of section 263 of the Act. Therefore, we are of the view that the assessment order passed by the Assessing Officer under section 143(3) of the Act dated March 26, 2013 is not erroneous in so far as it is prejudicial to the interests of the Revenue. - Decided in favour of assessee

Issues Involved:
1. Jurisdiction of the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961.
2. Examination and verification of issues by the Assessing Officer.
3. Estimation of net profit and rejection of books of account.
4. Applicability of section 40(b) and section 40A(3) of the Income-tax Act.
5. Prejudicial impact on the interests of the Revenue.

Detailed Analysis:

1. Jurisdiction of the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961:
The Commissioner of Income-tax (CIT) issued a show-cause notice proposing to revise the assessment order under section 263 of the Act, citing omissions and commissions by the Assessing Officer (AO) which rendered the assessment order erroneous and prejudicial to the interests of the Revenue. The CIT argued that the AO failed to verify core issues, thus necessitating a revision of the assessment order.

2. Examination and verification of issues by the Assessing Officer:
The assessee contended that the AO had examined all pertinent issues during the assessment process. The AO had issued a detailed show-cause notice and called for various details, including books of account, project details, and partner's capital account information. The AO, after considering these details, chose to estimate the net profit, ignoring the books of account due to their complexity.

3. Estimation of net profit and rejection of books of account:
The AO estimated the net profit at 12.5% on the gross receipts, following the precedent set by the Income-tax Appellate Tribunal (ITAT) in K. N. R. Constructions. The CIT, however, argued that the AO failed to examine specific issues such as work-in-progress, loans, and advances, and the applicability of section 40A(3). The assessee maintained that once the net profit is estimated, it is presumed that the books of account are rejected, and further reference to the same books for additional enquiries is unjustified.

4. Applicability of section 40(b) and section 40A(3) of the Income-tax Act:
The CIT questioned the deductions under section 40(b) for partner remuneration and interest, and the applicability of section 40A(3) concerning cash payments. The assessee argued that these issues were already examined by the AO, who had issued notices and received detailed responses. The AO's decision to estimate net profit after considering these details should not be deemed erroneous.

5. Prejudicial impact on the interests of the Revenue:
The CIT's revision under section 263 was based on the premise that the AO's lack of proper enquiry was prejudicial to the interests of the Revenue. The ITAT, however, found that the AO had conducted sufficient enquiry and had taken a conscious decision to estimate the net profit, which is a permissible method of assessment. The ITAT emphasized that the CIT cannot invoke section 263 merely because of a different opinion on the issues already examined by the AO.

Conclusion:
The ITAT concluded that the assessment order passed by the AO was neither erroneous nor prejudicial to the interests of the Revenue. The AO had examined all relevant issues and made a conscious decision to estimate the net profit. Therefore, the ITAT quashed the CIT's order under section 263 and restored the original assessment order. The appeal filed by the assessee was allowed.

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