2012 (7) TMI 576 - HC - Income Tax

Revisionary power of Commissioner under section 263 of the Act - addition was made in respect of profits from the unit at Gurgaon by disallowing some expenses - assessee during the course of the original assessment proceedings before the Assessing Officer had submitted, details of commission paid, purchase details, etc. Held that - Commissioner did not dispute or deny that the assessee had filed invoices, commission vouchers and details - Assessing Officer did not conduct any enquiry or verification whether the aforesaid commission of Rs. 3.33 crores was attributable to the orders placed and exports made by the Chennai unit - Failure to conduct the said enquiries, makes the assessment order erroneous and prejudicial to the interests of the Revenue - Commissioner rightly exercised his revisionary power under section 263 of the Act - required conditions for exercise of the said power are satisfied - in favour of the Revenue

Issues:
1. Interpretation of section 263 of the Income-tax Act, 1961 regarding the setting aside of orders by the Income-tax Appellate Tribunal.
2. Examination of commission payment of Rs. 3.33 crores debited in the profit and loss account of the non-SEZ unit at Gurgaon.
3. Verification of the attribution of commission payment to orders procured and supplies made by the Chennai unit.
4. Failure of the Assessing Officer to conduct necessary enquiries leading to an erroneous assessment order.

Issue 1: Interpretation of section 263 of the Income-tax Act, 1961
The High Court framed the substantial question of law to determine whether the Income-tax Appellate Tribunal was correct in setting aside the Commissioner of Income-tax's order under section 263 of the Income-tax Act, 1961. The Tribunal quashed the Commissioner's order, citing that the Assessing Officer had conducted adequate enquiries during the original assessment proceedings and had rightly allowed the claimed commission of Rs. 3.33 crores for the Gurgaon unit. The High Court acknowledged the Tribunal's decision and upheld it, emphasizing that the Commissioner's revisionary power under section 263 was rightly exercised due to the Assessing Officer's failure to conduct necessary enquiries, rendering the assessment order erroneous and prejudicial to the Revenue's interests.

Issue 2: Examination of commission payment
The Commissioner of Income-tax directed the Assessing Officer to examine the commission payment of Rs. 3.33 crores debited in the profit and loss account of the non-SEZ unit at Gurgaon. It was noted that no amount was debited for commission in the profit and loss account of the SEZ unit at Chennai. The Commissioner highlighted discrepancies in commission charges between the SEZ and non-SEZ units, raising concerns about the attribution of commission to sales made by each unit. The High Court concurred with the Commissioner's observations, emphasizing the need for a thorough examination of the commission payment and its correlation with export sales from both units to ensure accurate tax assessment.

Issue 3: Verification of commission payment attribution
The High Court noted that the Assessing Officer failed to verify whether the commission payment of Rs. 3.33 crores was attributable to orders procured and exports made by the Chennai unit, which enjoys exemption under section 10A of the Income-tax Act. Common parties placed orders for supplies from both units, indicating the necessity to establish a link between the commission paid and the sales made by each unit. The Court upheld the Commissioner's decision to set aside the assessment order and directed the Assessing Officer to examine all export sales from both units to determine the appropriate allocation of commission expenses.

Issue 4: Failure to conduct necessary enquiries
The High Court emphasized the failure of the Assessing Officer to conduct essential enquiries regarding the attribution of commission expenses, leading to an erroneous assessment order. The Commissioner rightly exercised revisionary power under section 263 of the Act due to this failure, which was deemed prejudicial to the Revenue's interests. The Court upheld the Commissioner's decision, highlighting the importance of conducting thorough enquiries to ensure accurate tax assessments and proper allocation of expenses between taxable and exempt units.

In conclusion, the High Court's judgment addressed multiple issues, including the interpretation of section 263 of the Income-tax Act, examination of commission payments, verification of attribution, and the consequences of the Assessing Officer's failure to conduct necessary enquiries. The decision reaffirmed the importance of conducting thorough investigations to uphold the integrity of tax assessments and protect the interests of the Revenue.

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