2021 (10) TMI 789 - AT - Income Tax

Revision u/s 263 by CIT - lack of inquiry v/s inadequate inquiry - CIT revising the assessment passed u/s 143(3) read with section 153A - failure of the assessee to establish with evidence that the AO had inquired and considered - As per CIT assessment which was completed u/s 143(3) read with section 153A was completed accepting the returned income of Rs. NIL without the report of the TPO - CIT observed that the assessment had been completed hurriedly and without waiting for the report of the TPO which was subsequently received by the AO vide order dated 28.10.2016 wherein an adjustment was proposed by him on account of adjustment to ALP of the international transaction - HELD THAT - A reference had been made to the TPO to ascertain the arms length price of the international transaction entered into by the assessee during the course of earlier assessment proceedings as early as in July 2013 whereas the search and seizure operation was carried out in September, 2013. AO, subsequently, completed the assessment u/s 143 (3) read with section 153A of the Act at the returned income without waiting for the report of the Transfer Pricing Officer. Although, it is the assessee s contention that the AO was aware of the reference so made, however it is undisputed that the AO did not deem it necessary to wait for the said report while passing the Assessment Order. This Bench, during the course of hearing, specifically asked the Ld. AR, to demonstrate with the evidence if the AO had required the assessee to establish that the international transaction was at arms length before reaching the conclusion that no reference to the TPO was required - AR expressed his inability to file any documents. AR was repeatedly asked by this Bench if he could substantiate the stand of the assessse that the AO had initiated inquiry into this aspect of the case and had, thereafter, accepted the return of the assessee only after going through the submissions and documents submitted by the assessee and after being duly satisfied that the returned income of the assessee was to be accepted. The assessee has also not bothered to file a paper book in this regard which could enable us to consider the entire factual matrix of the case on the line of argument of the Ld. AR. Thus, apparently from the records and as per the observations of the Ld. PR. CIT, coupled with the failure of the assessee to establish with evidence that the AO had inquired and considered and, thereafter, adjudicated the issue, we are constrained to hold that this is a clear case of lack of inquiry by the AO. Even the assessment order is very cryptic in as much as it does not even mention as to what issues were before the AO. In such circumstances, we hold that the order passed by the Ld. Pr. CIT revising the assessment passed u/s 143(3) read with section 153A is completely in order and we uphold the same. - Decided against assessee.

Summary

Issues Involved:
1. Jurisdiction under Section 263 of the Income Tax Act.
2. Adequacy of inquiry by the Assessing Officer (AO).
3. Adjustment to the Arm's Length Price (ALP) of international transactions.

Issue-wise Detailed Analysis:

1. Jurisdiction under Section 263 of the Income Tax Act:
The assessee challenged the jurisdiction of the Principal Commissioner of Income Tax (Pr. CIT) to pass an order under Section 263, arguing that the assessment order was neither erroneous nor prejudicial to the interest of the revenue. The Tribunal noted that the Pr. CIT had identified that the AO completed the assessment without waiting for the Transfer Pricing Officer's (TPO) report, which later suggested an adjustment of ?23.23 crores to the ALP of international transactions. The Tribunal upheld the Pr. CIT's jurisdiction, stating that the AO's failure to consider the TPO's report rendered the assessment order erroneous and prejudicial to the revenue.

2. Adequacy of Inquiry by the Assessing Officer (AO):
The assessee contended that the AO had conducted adequate inquiries and that the assessment order should not be revised. However, the Tribunal found that the AO had not waited for the TPO's report and had not demonstrated that the international transactions were at arm's length. The Tribunal emphasized that the AO's assessment order was cryptic and lacked details on the issues considered. Citing precedents, the Tribunal distinguished between "inadequate inquiry" and "lack of inquiry," concluding that the AO's actions constituted a lack of inquiry. The Tribunal referenced cases like Gee Vee Enterprises and Rampyari Devi Sarogi to support the view that the AO's failure to make necessary inquiries rendered the order erroneous.

3. Adjustment to the Arm's Length Price (ALP) of International Transactions:
The Pr. CIT directed an upward adjustment to the international transactions' ALP, which the assessee contested. The Tribunal noted that the AO had not waited for the TPO's report, which proposed a significant adjustment. The Tribunal upheld the Pr. CIT's direction to reframe the assessment order after considering the TPO's report, emphasizing that the AO's failure to incorporate the TPO's findings made the original assessment order erroneous and prejudicial to the revenue.

Conclusion:
The Tribunal dismissed the appeal, affirming the Pr. CIT's order under Section 263. The Tribunal concluded that the AO's failure to wait for the TPO's report and the lack of inquiry into the arm's length nature of international transactions justified the revision of the assessment order. The Tribunal's decision was based on established legal principles distinguishing between inadequate and lack of inquiry and the necessity for the AO to conduct thorough investigations when warranted by the circumstances.