2021 (6) TMI 133 - AT - Income Tax

Revision u/s 263 - non examination of issue of advance given and commision expenses paid - HELD THAT - On perusal of reply dated 21.09.2016 filed by assessee in response to the show cause notice dated 04.08.2016, copy of which is duly acknowledged by assessing officer, the assessee furnished the details of loan and advances to DGVCL and Amrutbhai I Patel. The assessee also mentioned in the reply that loan to Amrutbhai Patel was given as advance for property. The assessee further vide reply dated 25.11.2016 explained that advance given to Amrutbhai Patel was return back in the next year and furnished the copy of ledger account. On perusal of ledger account and bank statement of Amrutbhai Patel, we find that the advance of ₹ 50.00 lacks was return back to the assessee. Thus, the assessee has substantiated its contention, which we find in order. Accordingly the assessment order is not erroneous on this issue. Commissions payments to two persons - We find that during the assessment the assessee has filed reply to the quarry raised by the assessee and produced relevant evidence and offered explanation in pursuance of the notices issued and after considering those materials and explanation, the assessing officer has come to a certain conclusion, though it has not been mentioned explicitly in the assessment order. The ld. PCIT is not agreed with the conclusion reached by the assessing officer. CIT during the revisions proceedings, the assessee again furnished the details of commission payments and the services rendered by Karsan D Bhanushali and Deepak Dama. However, the ld. PCIT instead of giving his finding held that the claim needs to be verified. The Ld. PCIT has not deal with the explanation given by the assessee in the course of section 263 proceedings. Thus, in view of the above mentioned factual and legal discussions section 263 does not empower the ld. PCIT to take action on these facts to arrive at the conclusion that the order passed by the assessing officer is erroneous and prejudicial to the interest of the revenue. Since, on the basis of the material on record and the said explanation and evidence was considered by the assessing officer and a particular view was taken, the mere fact that different view can be taken, should not be the basis for an action under section 263 and it cannot be held to be justified, we hold so. Accordingly the ground No. 5 8 of the appeal raised by the assessee is allowed.

Issues Involved:
1. Jurisdiction of CIT under Section 263 of the Income Tax Act.
2. Disproportionate quantum of expenses.
3. Revenue recognition and applicability of AS-9.
4. Unsecured loans and completeness of loan confirmations.
5. Advance given to Shri Amrutbhai I. Patel.
6. Purchase of machinery and claim of additional depreciation.
7. Examination of sundry creditors.
8. Commission paid to Shri Deepakbhai M. Dama and Shri Manjibhai L. Bhanushali.
9. Inquiry adequacy by the AO.
10. Directions for revision by CIT.
11. Validity of CIT's revision order.

Detailed Analysis:

1. Jurisdiction of CIT under Section 263 of the Income Tax Act:
The appeal was directed against the order of the Principal Commissioner of Income Tax (PCIT) passed under Section 263, where the PCIT held that the assessment order was erroneous and prejudicial to the interest of the revenue. The Tribunal noted that the PCIT identified several issues for revision but focused on Ground Nos. 5 and 8.

2. Disproportionate Quantum of Expenses:
The CIT's order included an error regarding the quantum of expenses debited to the post-survey profit and loss account compared to the pre-survey account. However, this issue was not pursued further by the assessee during the appeal.

3. Revenue Recognition and Applicability of AS-9:
The CIT held that the assessment order was erroneous due to the lack of examination of the revenue recognition method and the applicability of AS-9. This issue was not contested further in the appeal.

4. Unsecured Loans and Completeness of Loan Confirmations:
The CIT treated the assessment order as erroneous due to incomplete loan confirmations. This issue was not pursued further in the appeal.

5. Advance Given to Shri Amrutbhai I. Patel:
The PCIT identified an advance of ?50 lakhs given to Shri Amrutbhai I. Patel for property purchase, noting that the AO did not examine the stages of the deal. The Tribunal found that the assessee provided all necessary details during the assessment, including the return of the advance, and held that the assessment order was not erroneous on this issue.

6. Purchase of Machinery and Claim of Additional Depreciation:
The CIT held that the assessment order was erroneous due to the lack of examination of proof regarding the purchase, installation, and use of machinery. This issue was not pursued further in the appeal.

7. Examination of Sundry Creditors:
The CIT treated the assessment order as erroneous due to the lack of examination of sundry creditors. This issue was not pursued further in the appeal.

8. Commission Paid to Shri Deepakbhai M. Dama and Shri Manjibhai L. Bhanushali:
The PCIT noted that the nature of services rendered by these parties was not examined, and suggested that they might be related parties. The Tribunal found that the assessee provided all necessary evidence during the assessment and revision proceedings, and held that the assessment order was not erroneous on this issue.

9. Inquiry Adequacy by the AO:
The CIT held that there was no inquiry on several issues. The Tribunal noted that the AO made sufficient inquiries and was satisfied with the assessee's explanations, and that the CIT cannot substitute his own view.

10. Directions for Revision by CIT:
The CIT's revision order was challenged for being vague and not specifying the extent and issues for revision. The Tribunal found that the CIT failed to provide specific directions and that the assessment order was not erroneous or prejudicial to the interest of the revenue.

11. Validity of CIT's Revision Order:
The Tribunal concluded that the CIT's order was not justified as the AO had made sufficient inquiries and the assessment order was neither erroneous nor prejudicial to the interest of the revenue. The Tribunal relied on various judicial precedents to support its conclusion.

Conclusion:
The appeal of the assessee was partly allowed, with the Tribunal setting aside the CIT's revision order on Ground Nos. 5 and 8, holding that the assessment order was neither erroneous nor prejudicial to the interest of the revenue on these issues.

← Previous Next →