2019 (12) TMI 771 - AT - Income Tax

Revision u/s 263 - G.P. shown at 4.68% on sales made in individual capacity should have been considered for G.P. in the case of the partnership firm (assessee under consideration) - HELD THAT - It is a settled position in law that provisions of section 263 do not permit substituting one opinion by another opinion. The order of the PCIT cannot be sustained on the principle of 'erroneous' nature of the order of the A.O. as it is not erroneous. Further, in the instant case, to reiterate, there was no allegation by the AO that the evidences produced were fictitious or invented, thus accepted the authenticity of the same. Such an order cannot be called erroneous and prejudicial to the interests of revenue. Hence, we are of the view that revisionary jurisdiction exercised by the PCIT u/s. 263 was not in tune with the facts and evidences on record duly explained to the A.O. and verified by him in detail, that being so the order passed u/s. 263 on such erroneous stand is liable to be quashed. We accordingly quash the order u/s 263 of the Act and allow the appeal of the assessee. Second point in the impugned notice u/s.263 was to the direction that addition of peak credit on the basis of the bank account has not been considered in the impugned reassessment order. As stated above, the said peak credit was assumed on the basis of deposits in April,2007 in Axis Bank maintained by the assessee-firm. It is pertinent to note that the said peak credit was originally added in the individual assessment of Sri Jabibur Rahaman for the impugned assessment year solely on the ground that the Bank account with Axis Bank had not been disclosed in his ROI. The Hon ble Tribunal on the basis of the finding that the same was not related to the individual but belonged to the partnership firm, in which the said individual is a partner, deleted the addition and the same was directed to be considered in the case of the assessment of the partnership firm. Evident that the addition of peak credit in the guise of undisclosed income was made for not disclosing the Axis Bank Account in the ROI, but when the said Bank Account admittedly stood declared in the ROI of the partnership firm for the impugned assessment year and accounted for in the audited books of account, the addition on the basis of earlier stand of undisclosed income does not survive on facts and in law. Since, in para No.12 of our order, we have quashed the order of PCIT, and the second point in the impugned notice u/s.263 is consequential in nature, therefore does not require adjudication. - Appeal of the assessee is allowed.

Issues Involved:
1. Jurisdiction under section 263 of the Income Tax Act.
2. Alleged lack of thorough and proper inquiry by the Assessing Officer (A.O.).
3. Application of Explanation to section 263 inserted by Finance Act, 2015.
4. Low Gross Profit (G.P.) declared by the appellant.
5. Assumption of low G.P. by the Principal Commissioner of Income Tax (Pr. CIT).
6. Estimation of G.P. at 4.68%.
7. Consideration of peak credit in reassessment order.
8. Legality and merit of the Pr. CIT's order.

Detailed Analysis:

1. Jurisdiction under Section 263:
The appellant argued that the Pr. CIT erred in assuming jurisdiction under section 263 of the Income Tax Act to impose his views on the A.O., who had taken a possible view. The Tribunal examined whether the conditions necessary to assume revisional jurisdiction were met. It was noted that the order of the A.O. must be both erroneous and prejudicial to the interest of the revenue for the Pr. CIT to exercise his power.

2. Alleged Lack of Thorough and Proper Inquiry by the A.O.:
The Pr. CIT assumed jurisdiction on the ground that the A.O. did not make thorough inquiries into the low G.P. declared by the appellant. The Tribunal observed that the A.O. had issued notices under sections 143(2) and 142(1) and had verified the books of accounts and other relevant documents. The A.O. had also examined the bank statement and reflected transactions in the books of accounts. Therefore, the Tribunal concluded that the A.O. had conducted adequate inquiries.

3. Application of Explanation to Section 263 Inserted by Finance Act, 2015:
The appellant contended that the Explanation to section 263, effective from 01.06.2015, could not be applied retrospectively to the assessment year 2008-09. The Tribunal did not find it necessary to delve deeply into this argument as it found that the A.O. had conducted proper inquiries, making the order not erroneous.

4. Low Gross Profit Declared by the Appellant:
The Pr. CIT observed that the G.P. rate declared by the appellant was significantly lower than that of an individual running a similar business. The Tribunal noted that the appellant had provided explanations for the low G.P., which were accepted by the A.O. after verifying the audited books of accounts and other documents.

5. Assumption of Low G.P. by the Pr. CIT:
The Pr. CIT assumed that the G.P. declared by the appellant was low without bringing any specific discrepancies in purchases, sales, stock, and expenses on record. The Tribunal held that the Pr. CIT's assumption was not backed by any specific findings and that the A.O. had accepted the G.P. after thorough scrutiny.

6. Estimation of G.P. at 4.68%:
The Pr. CIT assumed that the A.O. should have estimated the G.P. at 4.68%. The Tribunal found that the A.O. had accepted the books of accounts and the G.P. declared by the appellant after detailed examination. The Tribunal emphasized that merely because the Pr. CIT had a different opinion did not make the A.O.'s order erroneous.

7. Consideration of Peak Credit in Reassessment Order:
The Pr. CIT noted that the A.O. did not consider the peak credit of ?10,60,742/- in the reassessment order. The Tribunal observed that the A.O. had verified the bank transactions and found no discrepancies. The Tribunal also noted that the bank account in question was disclosed in the appellant's return of income and accounted for in the audited books.

8. Legality and Merit of the Pr. CIT's Order:
The appellant argued that the Pr. CIT's order was devoid of merit and should be quashed. The Tribunal concluded that the A.O. had conducted adequate inquiries and that the Pr. CIT's assumptions were not supported by specific findings. The Tribunal quashed the order under section 263 and allowed the appeal of the appellant.

Conclusion:
The Tribunal quashed the Pr. CIT's order under section 263 of the Income Tax Act, holding that the A.O. had conducted adequate inquiries and that the order was neither erroneous nor prejudicial to the interest of the revenue. The appeal of the appellant was allowed.

← Previous Next →