2021 (1) TMI 579 - AT - Income Tax

Revision u/s 263 - low net profit or loss shown from large gross receipts - VAT liability tantamount to violation of provisions of section 43B and the same should have disallowed by the Auditor himself from the calculation of net profit of business of the assessee - HELD THAT - It was the duty of the id. Pr. CIT to at least verify, prima facie as to whether the input and output entries have been routed through the profit and loss account or not, as certified by the tax auditor. Without doing so, he could not have come to the conclusion that there was an error in the assessment order passed by the AO and that this error is prejudicial to the interest of the revenue. When VAT is not routed through the profit and loss account, the assessee could not have claimed this amount it as a deduction. VAT is not debited to the profit and loss account. When VAT is not claimed as a deduction, while computing the income, the question of disallowing the same u/s 44AB of the Act, does not arise. Thus, in our considered view, the id. Pr. CIT has committed an error in not examining the issue by himself before coming to the conclusion that there is an error which is prejudicial to the interest of the revenue, which requires revision, by invocation of powers u/s 263 - Decided in favour of assessee.

Summary

Issues:
Delay in filing the appeal, Revision of assessment u/s 263 of the Income Tax Act, 1961, Application of Section 43B of the Act, Verification of indirect tax entries in profit and loss account, Error in assessment order, Prejudice to the interest of revenue.

Delay in filing the appeal:
The appeal was filed with a delay of 27 days, which was condoned by the Appellate Tribunal after being convinced that the assessee had sufficient cause for the delay, leading to the admission of the appeal.

Revision of assessment u/s 263 of the Income Tax Act, 1961:
The Principal Commissioner revised the assessment u/s 263 due to the low net profit shown from large gross receipts, which was selected for scrutiny. The Tribunal noted that the VAT amount was not routed through the profit and loss account, leading to a conclusion that the revision by the Principal Commissioner was erroneous and prejudicial to the interest of the revenue.

Application of Section 43B of the Act:
The Tribunal analyzed the application of Section 43B of the Act concerning the VAT liability not being paid on time. The tax auditor had certified that the VAT liability was not included in the profit and loss account, which meant that the VAT amount could not be claimed as a deduction, thus negating the application of Section 43B.

Verification of indirect tax entries in profit and loss account:
The Tribunal emphasized the importance of verifying whether the indirect tax entries were routed through the profit and loss account, as certified by the tax auditor. It was noted that without proper verification, the conclusion of an error in the assessment order by the Principal Commissioner was unfounded.

Error in assessment order, Prejudice to the interest of revenue:
The Tribunal held that the Principal Commissioner erred in not examining the issue regarding the routing of VAT through the profit and loss account before concluding that there was an error prejudicial to the interest of the revenue. As VAT was not claimed as a deduction, the disallowance under Section 44AB did not apply, leading to the decision that the order passed u/s 263 of the Act was bad in law, resulting in the allowance of the assessee's appeal.