2021 (7) TMI 1075 - AT - Income Tax

Revision u/s 263 - scheme or demerger conceived - under assessment of the income for the year under consideration under the provisions of MAT under section 115 JB of the Act as the AO allowed the deduction by way of adjustment of brought forward losses - assessee has claimed business loss and unabsorbed depreciation pertaining to the assessment year 2006-07 and 2007-08 although the same (the assessee) came into existence with effect from the assessment year 2008-09 - As per the PCIT the unabsorbed depreciation and brought forward losses pertain to the assessment years 2006-07 and 2007-08 i.e. pre-existence period the assessee, therefore, the same was not to be allowed to be carried forward such unabsorbed depreciation and brought forward losses under normal as well as under the provisions of MAT under section 115 JB - HELD THAT - The impugned losses in the year under consideration represents the brought forward amounts from the earlier years. This fact can be verified from the submission of the assessee before the ld. CIT-A in the proceedings of the assessment framed under section 143(3) r.w.s. 263 of the Act. This fact also remained undisputed by the Ld. DR appearing on behalf of the Revenue. Answer to question whether the brought forward amount can be enquired in the year under consideration without disturbing the 1st year (the year of origin ) in which such amounts were incorporated in the books of accounts of the assessee certainly, stands in negative. Whether the Revenue can disturb the impugned amount brought forward from the earlier years, but the learned DR cannot make any satisfactory reply ? - in the absence of any provisions under the law for disturbing the brought forward balances in the year under consideration in the given facts and circumstances, we hold that the learned PCIT has held the assessment order under consideration as erroneous insofar prejudicial to the interest of revenue under the provisions of section 263 of the Act without having any valid jurisdiction. Accordingly, we hold that the order framed under section 263 of the Act is not sustainable and therefore we quash the same. Hence, the ground of appeal of the assessee is allowed.

Summary

Issues:
1. Revision of assessment order under section 263 of the Income Tax Act, 1961.
2. Allowance of carry forward losses and unabsorbed depreciation.
3. Validity of revisionary orders passed by the PCIT.

Issue 1: Revision of assessment order under section 263:
The Assessee filed two appeals against the orders of the Pr. Commissioner of Income Tax-1 and the Commissioner of Income Tax (Appeals). The first appeal was against the order passed under section 263 of the Act, which was found erroneous by the PCIT. The PCIT observed that the assessment framed under section 143(3) was prejudicial to the interest of Revenue as the Assessee was not entitled to carry forward business loss and unabsorbed depreciation for the assessment years 2006-07 and 2007-08. The PCIT proposed to revise the assessment order, leading to an appeal by the Assessee challenging the PCIT's decision.

Issue 2: Allowance of carry forward losses and unabsorbed depreciation:
The Assessee contended that it was entitled to carry forward losses and unabsorbed depreciation from the period prior to the demerger under section 72A of the Act and as per the direction of the Hon'ble High Court of Gujarat. The Revenue, however, supported the PCIT's decision. The Tribunal noted that the Assessee came into existence post-demerger and carried forward losses and unabsorbed depreciation in accordance with the High Court's order. The Tribunal held that the PCIT's decision to disturb the brought forward balances without valid jurisdiction was erroneous, and thus quashed the revisionary order under section 263 of the Act.

Issue 3: Validity of revisionary orders passed by the PCIT:
The Tribunal found the revisionary order passed by the PCIT under section 263 of the Act to be invalid and void ab initio. As a result, the consequential order based on the revisionary order was also deemed to have no legal basis. The Tribunal dismissed the appeal filed by the Assessee for the year under consideration as infructuous due to the invalidity of the revisionary order.

In conclusion, the Tribunal allowed the appeal filed by the Assessee against the revision of the assessment order under section 263 for A.Y. 2011-12 and dismissed the appeal for the same year as infructuous due to the invalidity of the revisionary order. The Tribunal held that the PCIT's decision to disturb the brought forward balances without valid jurisdiction was erroneous, leading to the quashing of the revisionary order.