9911796707
TMI Blog2020 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... profits and gains of business before allowing deduction u/s 36(1)(viii) and consequently, allowed excess deduction of 1.40 crores. We find that although, the Ld. AO has examined the issue at the time of assessment proceedings and recomputed eligible deduction u/s. 36(1)(viii), but failed to exclude interest received on income tax refund from profits and gains of business before allowing deduction u/s. 36(1)(viii). We further noted that the assessee has accepted the fact that the said interest on income tax refund needs to be excluded from profits and gains of the business. Further contended that once, it has been excluded from profits and gains of the business, then the same needs to be excluded from revenue from operations in order to compute eligible deduction u/s.36(1)(viii) and accordingly, filed a revised computation of eligible deduction u/s.36(1)(viii), which is part of paper book page 107 filed by the assessee. We are of the considered view that insofar as, this issue is concerned the assessment order passed by the Ld. AO is erroneous, insofar as it is prejudicial to the interest of the revenue. However, as regards excess deduction computed by the ld. PCIT and excess deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assigned by him for doing so are wrong and contrary to the facts of the case, the provisions of Income Tax Act, 1961, and the Rules made there under. 1.(b) On the Facts and in the circumstances of the case and in law, the appellant prays that the order of the learned CIT passed u/s.263 of [he Income Tax Act, 1961 may be cancelled being void ab-initio and bad in law. 2.(a) On the (acts and in the circumstances of the case and in law, the learned Commissioner of Income Tax erred in holding that the learned AO without application of mind has incorrectly allowed. The appellants claim for reduction of ₹ 23,93,25,367/-(₹ 22,49,00,000o/- + R.S. 1,44,25,367/-) from total Income being write back on account of the Provision for restructuring of assets and Provision for bad and doubtful debts and the reasons assigned by him for doing so are wrong and contrary to the acts of the case, the provisions of Income Tax Act,1961, and the Rules made there under. 2.(b) Commissioner of Income Tax erred in invoking the provision of section 263(1) of the Income Tax Act, 1961,without appreciating the fact that the Id. Assessing officer had after enquiries, examination of facts, appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s added back to the computation of total income and therefore, is reduced from computation of total income al the lime writing back of the same. 3.(a) On the facts and in the circumstances of the case and in law. the leaned Commissioner of Income Tax erred in holding that Id. AO has erred in allowing excess deduction of ₹ 1,40,26,066/- u/s 36(l)(viii), which is wrong and contrary to the facts of the case, the provisions of Act and the Rules made there under; 3.(b) On the fact and in the circumstances of the case and in law. The learned Commissioner of Income Tax ought to have reduced interest on income tax refund of ₹ 22.95 crore from numerator as well as denominator while calculating deduction u/s 36(l)(viii) and not doing so is wrong and contrary to the facts of the case, the provisions of Act and the Rules made there under; 3. The assessee, M/s Small Industrial Development Bank Of India (SIDBI), is a state owned non banking finance company engaged in the business long term financing and banking business, filed its return of income for AY 2010-11 on 29/09/2010, declaring total income of ₹ 1,235,95,37,787/-. Subsequently, a revised return of income was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been reduced from the profits and gains from the business. The assessee, further submitted that no doubt interest on income tax refund should be excluded from profit, while computing deduction u/s 36(1)(viii), however once interest on income tax refund has been excluded from profits and gains, then the same needs to be excluded from income from operations to determine the quantum of deduction and accordingly, filed a revised computation and as per which, the assesee has determined excess deduction of ₹ 79,06,329/- as against of ₹ 1,40,26,066/- worked out by the Ld.PCIT. 4. The Ld.PCIT, after considering relevant submission of the assessee and also by relied upon plethora of judicial precedents, including the decision of Hon'ble Supreme Court, in the case of Malabar Industrial Company Limited vs CIT 243 ITR 83, held that the assessment order passed by the Ld. AO is erroneous, insofar as, it is prejudicial to the interest of the revenue and accordingly, set aside assessment order passed by the Ld.AO and direct the AO to make a fresh assessment after conducting enquiries and a detailed verification of the facts, in light of discussions given in his revision order. The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid claims i.e., 'provision for restructuring of assets written back' and 'provision for bad and doubtful debts written back' totaling to ₹ 23,93,25,367/- are erroneous and prejudicial to the interest of the revenue. vii] Further, on perusal of the records of the assesses company, it is seen that the assessee company had claimed deduction u/s 36(1)(viii) of ₹ 83,31,54,230/-, being 20% of profits and gains of business of ₹ 1363,07,75,789/-. During the course of scrutiny assessment, the assessing officer, after certain additions and deletions had arrived profits and gains of business income at ₹ 1353,29,35,769/- and allowed deduction of Rs,82,71,73,952/- as against the assessee's claim of ₹ 88,31,54,230/-. viii) In this regard, it is noted that for the year under consideration, the assessee had interest income of ₹ 22,94,72,711/- on account of income tax refund (vide note 20 to the balance sheet) and this was included in other income in P&L A/c, This income being income from other sources, it should have been reduced while computing profits and gains of business. However, this was not done, leading to excess allowance of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised is erroneous, (ii) it is prejudicial to the interest of the Revenue, (iii) if the AO passed an order without application of mind or failed to apply his mind to the case in all perspective, the order passed by him was erroneous (iv) mere acceptance of a statement filed by the assessee, in absence of any supporting material and without making any enquiry, would make the order of the AO erroneous. I have examined the issues with the case records and I am satisfied that these conditions are satisfied in the case of the assessee, for exercising jurisdiction u/s 263 of the Act. The powers u/s.263 came up for consideration before the Karnataka High Court in the case of CIT v, Infosys Technologies Ltd., (341 ITR 293). Reference was made by the Karnataka High Court to the observations of the Supreme Court in the cases of Electro House (82 ITR 824) and Malabar Industrial Co. Ltd. v. CIT, to hold that since the AO had not disclosed the basis on which the tax reliefs were arrived at in the assessment order, being important for determination of tax liability, there was definitely a possibility of the order being both erroneous and prejudicial. The High Court held that the argument that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der will be erroneous. Reliance is also placed on the following decisions where action u/s 263 was upheld. i. Where relief was granted to the assessee without proper verification. Indian Textiles v CIT, (1986) 157mlTR 1123(Mad): {1985) Tax 79(3) 327. ii. Assessment made without enquiry into the facts stated in the return. Gee Vee Enterprises v Addl, CIT(1975] 99 IT 375(Del) iii. Where the Assessing Officer has accepted the claim of the assessee as to non taxability of income erroneously without making proper enquiries, it is beyond dispute that the Commissioner has under section 263 power to set aside the assessment order and send the matter for fresh assessment if he is satisfied that further enquiry is necessary and that the order of the Assessing Officer is prejudicial to the interest of Revenue. Swarup Vegetable Products Industries Ltd (No.l) v CIT 87 ITR 412 (All). 10. In the light of the facts discussed above, the assessment order passed u/s, 143 (3) of the IT. Act, 1961, by the Assessing Officer is found to be erroneous and prejudicial to the interest of revenue within the meaning of Section 263 of the Act. Hence the assessment made by AO is set-aside with a directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned by the Ld.PCIT in revision proceedings is subject matter of appeal before the Ld.CIT(A), because the issue taken up by the Ld.PCIT and the issue before the Ld.CIT(A) are altogether different. Therefore, the Ld.PCIT was right in taken up the issue of allowances of deduction of ₹ 22.49 cores towards provision for restructuring of assets written back. He, further submitted that insofar as, re-computation of excess deduction allowed u/s 36(1)(viii), it is an admitted fact that the Ld.AO has not considered the facts in right perspective of the Act, to allow deduction, which resulted in excess deduction of ₹ 1.40 cores, which is evident from the fact that the assessee has admitted the fact that interest on income tax refund has to be excluded from profit and gains of business, however contended that the same needs to be excluded from total revenue from operations in order to compute eligible deduction. Therefore, he submitted that the assessment order passed by the Ld.AO is erroneous, insofar as, it is prejudicial to the interest of the revenue and hence, there is no error in the findings of the Ld.PCIT in revision of assessment order and his order should be upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed deduction of ₹ 22.49 crores, towards provision for restructuring of assets written back and towards provision for bad and doubtful debts written back. 9. We, further noted that this issue has been subject matter of consideration from the ld. AO during the assessment proceedings and also, the Ld. AO has disallowed amount claimed towards deduction under the head bad and doubtful debts, which is evident from the fact that the assessee has challenged the disallowances made by the Ld.AO towards provision for bad and doubtful debts before the Ld.CIT(A). Once, an issue is subject matter of assessment proceedings and also, bone of contention between the assessee and the AO before the first appellate authority, then the assessment order passed by the Ld.AO, insofar as that issue get merges with the order of the Ld.CIT(A) and the Ld.CIT(A) can proceed with the issues in accordance with law. Further, once the issue is subject matter of appeal before the Ld.CIT (A), then as per the provision of Explanation 3 to section 263(1) revisional jurisdiction cannot be invoked by the Ld.PCIT to revise the assessment order. This proposition has been considered by the coordinate bench of IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the ld. PCIT was precluded from revising the assessment order. The ld. AR submits that the Assessing Officer while passing the assessment order has taken one of the possible views. Therefore, the assessment order was not erroneous. The twin condition as provided under section 263 of the Act when the order is erroneous in so far as prejudicial to the interest of revenue are not satisfied. In support of his submission, the ld. AR of the assessee relied upon the decision of Malabar Industrial Company Ltd. (supra), decision of Hon'ble Mumbai High Court in CIT vs. Gabriel India Ltd. (supra). 8. On the principle of merger, the ld. AR of the assessee relied upon the decision of jurisdictional High Court in CIT vs. Paul Brothers (supra), CIT Vs K Sera Sera Productions Ltd ( 374 ITR 530 Bom) and Gujarat High Court in CIT Vs Nirma Chemicals works P. Ltd (309ITR 67 Guj). 9. On the other hand, the ld. Departmental Representative (DR) for the revenue supported the order of ld. PCIT. The ld. DR submits that the Assessing Officer has not discussed the issue in details while passing the assessment order and that the Assessing Officer after receiving the reply of assessee allowed the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 263 makes it clear that the Commissioner of Income-tax is entitled to revise an assessment order insofar as the order is erroneous and prejudicial to the interest of the revenue, however, Explanation (c) places an embargo on the Commissioner of Income-tax in case of subject-matter of any appeal which has been considered and decided in such appeal. In other words, before the Commissioner of Income-tax exercises the jurisdiction under section 263 of the Act, the Commissioner of Income-tax is required to ascertain whether the order referred to in sub-section (1) of section 263 of the Act had been the subject-matter of any appeal, and if yes, the revisional powers shall be available only if such subject-matter had not been considered and decided in such appeal 13.The Hon'ble Bombay High Court in CIT Vs K Sera Sera Productions Ltd (374 ITR 530 Bom) held where issues of income of assessee from production of film and deduction of cost of production there against had been considered and decided in appeal by first appellate authority, said issues could not be made subject matter of revision under section 263. The relevant part of the order is extracted below: "10. We find that despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority's order and dealt with extensively therein is now sought to be revised and revisited. Firstly, if the income of the Assessee from the film is ₹ 11,25,00,000/-, then, whether the explanation of the Assessee that it is not so deserves to be considered or not by the Assessing Officer is grievance No. 1/ground No. 1 before the first appellate authority. Secondly, if that is taken to be the income of the Assessee and without admitting it to be so the cost of production of the film needs to be deducted by applying Rule 9A of the Income Tax Rules. Thus, that is ground No. 2 in the memo of Appeal before the first appellate authority and in his order dated 12th October, 2011. Both these matters are very much part of the revisional authority's order dated 29th March, 2012. The attempt to reopen them cannot be saved as clause (c) of Explanation below sub-section (1) of section 263 of the Income Tax Act, 1961 had no application. 14.The Hon'ble Gujarat High Court in CIT Vs Nirma Chemicals works P. Ltd (309ITR 67 Guj) held that the Commissioner is entitled to revise an assessment order insofar as the order is erroneous and prejudicial to the interest of the revenue, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussions on other legal submissions and merit of the case has become academic. 10. In this view of the matter and considering the facts and circumstances of this case, we are of the considered view that insofar as, the issue of allowances of deduction of ₹ 22.49 crores towards provision for restructuring of assets written back and ₹ 1.44 crores towards provision for bad and doubtful debts written back, the assessment order passed by the Ld.AO cannot be termed as erroneous, insofar as it is prejudicial to the interest of the revenue and hence, we set aside the findings of the Ld.PCIT and restored the findings of the Ld.AO. 11. Coming back to the second issue questioned by the Ld.PCIT. The Ld.PCIT has questioned deduction allowed u/s 36(1)(viii) of the I.T.Act, 1961 of ₹ 1.40 crores, being profits from long term finance given by the assesee, on the ground that although, the Ld. AO has examined the issue and recomputed eligible profit and gains and income from operations, but failed to reduce interest received on income tax refund of ₹ 22.95 crores from profits and gains of business before allowing deduction u/s 36(1)(viii) of the I.T.Act, 1961 and consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO to exclude interest on income tax refund from profits and gains of business and also from total revenue from operations for the purpose of determination of allowable deduction u/s.36(1)(viii) of the I.T.Act, 1961. 13. In the result, appeal filed by the assesse ITA No.2996/Mum/2015 for AY 2010-11 is treated as partly allowed. ITA NO. 2997/Mum/2015 for AY 2011-12 14. The assessee has raised the following grounds of appeal: 1.(a) On the facts and in The circumstances of the case and in law, The learned Commissioner of Income Tax erred in initiating proceedings u/s.263 of the Income Tax Act, 1961 vide show-cause notice dated 02.03.2015 and passing the order u/s, 263 of the Income Tax Act, 1961 and the reasons assigned by him for doing so are wrong and contrary to the facts of the case, the provisions of Income Tax Act, 1961, and the Rules made there under. 1.(b) On the Facts and in the circumstances of the case and in law, the appellant prays that the order of the learned CIT passed u/s.263 of [he Income Tax Act, 1961 may be cancelled being void ab-initio and bad in law. 2.(a) On the facts and in the circumstances of the case and in law, the learned Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usted/reduced/considered against the claim for bad debts written off u/s 36(1)(vii) in terms of proviso thereto and as such the said finding of learned CIT will amount to double addition. 3.(a) On the facts and in the circumstances of the case and in law. the leaned Commissioner of Income Tax erred in holding that Id. AO has erred in allowing excess deduction of ₹ 73,30,298/- u/s 36(1)(viii), which is wrong and contrary to the facts of the case, the provisions of Act and the Rules made there under; 3.(b) On the fact and in the circumstances of the case and in law. The learned Commissioner of Income Tax ought to have reduced interest on income tax refund of ₹ 14.73 crore from numerator as well as denominator while calculating deduction u/s 36(1)(viii) and not doing so is wrong and contrary to the facts of the case, the provisions of Act and the Rules made there under; 15. The facts and issues involved in this appeal filed by the assessee are identical to the facts and issues, which we had considered in ITA No. 2996/Mum/2015 for AY 2010-11. The reasons given by us in proceedings paragraphs in ITA No. 2996/Mum/2015 shall mutatis mutandis apply by this appeal, as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
