2018 (3) TMI 310 - HC - Income Tax

Revision u/s 263 - order of the AO does not explain as to how the figure of ₹ 40 lakhs has been arrived at as undisclosed turn over and on what basis, income was estimated at 10% thereof - the order does not even explain the basis for allowing ₹ 36 lakhs as expenditure out of the unaccounted sales of ₹ 40 lakhs thereby taxing the balance of ₹ 4 lakhs only - Held that - As held by the Supreme Court in Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court) an order would be termed as erroneous, if the same is based on an incorrect assumption of facts or an incorrect application of law. Commissioner considered any material available on record, which would have improbablised the claim of the assessee that out of the turnover of ₹ 40 lakhs, he has incurred an expenditure of ₹ 36 lakhs, it would have been permissible for him to interfere with the assessment order, for, in such a case, acceptance of the claim of the assessee by the AO could have been termed as based on an incorrect assumption of facts contrary to the record. The Commissioner has not pointed out any such material. In the absence of such material, in our opinion, the Commissioner wanted a further enquiry into the correctness or otherwise of the claim of expenditure, which, totally, falls outside the scope of his jurisdiction under Section 263 of the Act. It is the order of the Commissioner, which is based on an incorrect assumption that the expenditure might have been exaggerated or bloated up without there being anything on record. The Commissioner has also not rendered a finding that assumption of income at 10% of the undisclosed turn over is contrary to any statutory provisions or settled legal principle. Therefore, it cannot be said that the order of the AO suffers from the defect of an incorrect assumption of fact or an incorrect application of law warranting interference - Decided in favour of assessee

Summary

Issues Involved:
1. Whether the Tribunal was correct in setting aside the order of the Commissioner of Income Tax passed under Section 263 of the Income Tax Act.
2. Whether the Tribunal was correct in upholding the order of the Assessing Officer estimating the profit at a certain percentage of unaccounted sales as against the entire undisclosed turnover.

Issue-wise Detailed Analysis:

1. Correctness of Tribunal's Decision to Set Aside the Commissioner's Order under Section 263:

The respondent-assessee, Chairman of a group of companies, was subjected to a search and seizure operation under Section 132 of the Income Tax Act on 24-10-1997, admitting undisclosed income. The Assessing Officer (AO) accepted the returns filed by the assessee for the block period 01-04-1987 to 24-10-1997. However, based on audit objections, the Commissioner of Income Tax issued show cause notices under Section 263, setting aside the AO's orders. The Tribunal allowed the appeals filed by the assessees, leading to the Revenue's appeal.

The learned Standing Counsel for Income Tax argued that the Tribunal erred in setting aside the Commissioner's order, which found the AO's acceptance of the returns erroneous due to a lack of proper enquiry into the assessee's claim of expenditure. The respondent's counsel countered that the Commissioner exceeded his jurisdiction under Section 263, which requires twin conditions: the order must be erroneous and prejudicial to the Revenue's interests.

The Supreme Court's judgments in Malabar Industrial Co. Ltd. and CIT vs. Max India Ltd. were cited, emphasizing that Section 263 cannot correct every mistake by the AO and requires an erroneous order causing revenue prejudice. The High Court reiterated that the Commissioner's order must be based on material evidence and not on assumptions or roving inquiries.

The Commissioner criticized the AO for not explaining the basis for estimating the undisclosed turnover and allowing substantial expenditure, leading to minimal taxable income. However, the High Court found that the Commissioner did not present material evidence contradicting the assessee's claims. The AO's acceptance of the returns, after verification by the Deputy Director of Income Tax, was deemed plausible.

2. Correctness of Tribunal's Decision on Estimating Profit Percentage of Unaccounted Sales:

The Commissioner questioned the AO's method of estimating the profit at 10% of the undisclosed turnover without clear justification. The High Court noted that the Commissioner did not provide evidence to disprove the assessee's expenditure claims or show that the AO's estimation was legally unsustainable.

The Tribunal's decision to set aside the Commissioner's order was upheld, as the AO's view was considered plausible and based on verification. The High Court emphasized that where two views are possible, the Commissioner cannot revise the AO's order merely because of disagreement.

Conclusion:

The High Court concluded that the Tribunal correctly set aside the Commissioner's order under Section 263 and upheld the AO's estimation of profit. The substantial questions of law framed by the Revenue were answered against it, leading to the dismissal of the appeal.