Monday, 22 December 2014

Understanding section 263 & 264 of Income tax act with latest case laws:


The opening of assessment by Commissioner of Income tax by invoking power of section 263 may have adverse impact on the taxpayer & hence it is very important for tax professional to have more information in this respect.
Let us first read the section 263 first in this respect.
Revision of orders prejudicial to revenue.
263. (1) The [Principal Commissioner or] Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as  it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
26[Explanation.—For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,—
(a) an order passed 27[on or before or after the 1st day of June, 1988] by the Assessing Officer shall include—
(i) an order of assessment made by the Assistant Commissioner 28[or Deputy Commissioner] or the Income-tax Officer on the basis of the directions issued by the 29[Joint] Commissioner under section 144A;
(ii) an order made by the 29[Joint] Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the 29a[Principal Chief Commissioner or] Chief Commissioner or 29a[Principal Director General or] Director General or 29a[Principal Commissioner or] Commissioner authorised by the Board in this behalf under section 120;
(b) "record" 30[shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the 29a[Principal Commissioner or] Commissioner;
(c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal 31[filed on or before or after the 1st day of June, 1988], the powers of the 31a[Principal Commissioner or] Commissioner under this sub-section shall extend 31[and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.]
32[(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.]
(3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, 33[National Tax Tribunal,] the High Court or the Supreme Court.
Explanation.—In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.

Thus, the important finding of the above section  is that  CIT must record the reason that the order passed by AO is erroneous in so far as  it is prejudicial to the interests of the revenue.

Now lets read the section 264.
Top of Form
Revision of other orders.
34264. (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the [Principal Commissioner or] Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit.
(2) The 35a[Principal Commissioner or] Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously.
(3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier :
Provided that the 35a[Principal Commissioner or] Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause36 from making the application within that period, admit an application made after the expiry of that period.
(4) The 36a[Principal Commissioner or] Commissioner shall not revise any order under this section in the following cases—
(a) where an appeal against the order lies37 to the 38[Deputy Commissioner (Appeals)] 39[or to the Commissioner (Appeals)] or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal 40[to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or
(b) where the order is pending on an appeal before the 41[Deputy Commissioner (Appeals)]; or
(c) where the order42 has been made the 42subject of an appeal 40[to the Commissioner (Appeals) or] to the Appellate Tribunal.
(5) Every application by an assessee for revision under this section shall be accompanied by a fee of 43[five hundred] rupees.
44[(6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1998, an order shall be passed within one year from the end of the financial year in which such application is made by the assessee for revision.
Explanation.—In computing the period of limitation for the purposes of this sub-section, the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.
(7) Notwithstanding anything contained in sub-section (6), an order in revision under sub-section (6) may be passed at any time in consequence of or to give effect to any finding or direction contained in an order of the Appellate Tribunal, 45[National Tax Tribunal,] the High Court or the Supreme Court.]
Explanation 1.—An order by the 45a[Principal Commissioner or] Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee.
Explanation 2.—For the purposes of this section, the 46[Deputy Commissioner (Appeals)] shall be deemed to be an authority subordinate to the 45a[Principal Commissioner or] Commissioner.

The important finding of the above section is that tax payer here time to file the appeal before CIT is one year from the date of receipt of assessment order whereas in case of  CIT(A) u/s 246 is only one month. Hence in case taxpayer not able to file appeal within time u/s 246 then he can go for revision u/s 263.  Bottom of Form


Given below the latest judicial decisions of various courts in respect of section 263 & 264 of the act.

·         Errors done by AO :  In the case of CIT .v. Goetze (India) Ltd., 361 ITR 505, it was held that Revision order was held justified as the AO made error in computing income u/s.115JA and also failed to apply s. 14A.   
Assessee filed several replies, as well as details, evidences before the AO.AO passed order u/s. 143(3).  Tribunal held that the order of AO could not be said to be erroneous insofar prejudicial to interest of  revenue. When all discrepancies were pointed out in rectification application u/s. 154, Commissioner  should have verified all facts and should not have forwarded rectification application to A. O. for  verifying discrepancies pointed out by assesse. Commissioner was not justified in revising assessment order in proceedings u/s. 263. Refer, PyareLalJaiswal .v. CIT, 146 ITD 555
CIT issued notice u/s.263 proposing to revise the assessment order but in the said notice it was mentioned  that the assessment order was set-aside. However, the assessee was given a number of opportunities of  being heard. Revision order was held to be valid. Refer, Ashutosh Bandopadhyay .v. CIT, 363 ITR 168. 
Housing project deduction u/s 80IB(10) was  allowed without application of mind by Assessing Officer and  Revision was held to be valid. Refer, CIT .v. Abad Constructions (P.) Ltd, 363 ITR 372 .   
It was held that Deduction u/s. 80I having wrongly been allowed in respect of interest on short term  deposit and transportation charges, as they are not derived from industrial undertaking, CIT was justified  in exercising jurisdiction under s. 263. Refer, Krishak Bharati Co-op Ltd .v. CIT, 101 DTR 345.    
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In the case of Popular Mini Finance v. CIT, 97 DTR 407, it had been held that Reasonableness of the  income offered has not been properly examined by the AO while making assessment and hence revision  of order was up held by the Tribunal-No substantial question of law.

The Commissioner has to be satisfied of twin conditions viz., (i) the order sought to be revised is   erroneous; and (ii) it is prejudicial to the interests of the Revenue.The phrase "prejudicial to the interests of the Revenue" should be understood in ordinary meaning, it  is of wide import and it is not confined to laws of tax. Since while passing the order, the AO had not applied correct provisions as they stood during the relevant time and ha d just accepted what the assessee wanted him to accept without discussing the allowability or disallowance of these deductions, Commissioner’s jurisdiction was justified.   Refer, Leo Meridian Infrastructure Projects and Hotels Ltd. v. DCIT, 24 ITR 123(Hyd.) (Trib.)

In the return of income assessee claimed deduction of expenditure incurred on repairs of a portion of  damaged building and plant and machinery. Assessing Officer accepted the assessee's claim. CIT set  aside the order and held that replacement or repairs of building and plant and machinery on destruction of  same by fire cannot be considered as current repairs or revenue expenditure because said replacement results in to brining in to a new asset giving enduring benefit to assessee. On appeal the Tribunal held that revision order was justified. Tribunal also held that prior period expenses which was wrongly allowed ,revision order was held to be justified. Refer, 35 taxmann.com 50 (Hyd.)(Trib.)Navabharat Ventures Ltd. v. CIT.
No specific error in assessment  order revision was not valid. Refer, CIT v. Land T Infrastructure Development Projects Ltd, 357 ITR 763.

·         Erroneous order :  In the case of CIT v. Kailash Chand MethI., 366 ITR 333, the AO passed the order u/s 143(3), & later there is CBDT circular by which there is  case of loss for revenue. Since, the order passed by AO was erroneous at that time & hence the revision by CIT u/s 263 is not valid.   

Reliance to be places in the case of Gopal Narayan Singh v. Deputy CIT, VOL 34 PG 461, where it had been decided that  there cannot be any revision due to improper or incorrect opinion framed by CIT.  

Further reliance to be placed in the case of CIT .v. New Delhi Television Ltd, 220 Taxman 43,  where it had been held that when AO examined the matter in details during assessment proceedings, then opening of case u/s 263 is not valid.
In the case of CIT .v. Anand Food Products, 220 Taxman 40,  it had been held that Assessment Order cannot be said to be prejudicial to interest of revenue merely because discussion not made. 

Further in the case of CIT .v. Galileo India (P.) Ltd, 220 Taxman 115, it had been held that since CIT not able to satisfy that order passed by was erroneous & hence revision u/s 263 was held invalid.

AO examined eligibility of assessee to claim deduction and held that assessee had fulfilled all  conditions as prescribed under section 80-IA but he allowed part deduction to assessee as deduction in respect of profit earned by assessee from a contract with a builder and interest income on FDRs was  inadmissible. Commissioner invoked its power u/s 263 on the ground that as per Explanation to  section 80-IA, assessee was not eligible for deduction under section 80-IA and, thus, Assessing  Officer did not carry out proper enquiries. Facts revealed that Assessing Officer after examination of  records and recording clear facts had allowed part deduction to assessee. Therefore, the order passed  by AO was in accordance with law and could not be said to be erroneous and liable for Revision u/s  263 of the Act. Refer, Shree Narayan Built Up (I) (P) Ltd. v. CIT, 61 SOT 79.

The assessee was engaged in the business of manufacturing and export of jewellery. During the course of assessment proceedings, while examining the details of expenses relating to the head ‘miscellaneous expenditure’ , the AO took the view that expenses on account of repairs and maintenance were capital expenditure and disallowed them, also AO made disallowance u/s 40(a)(ia). This order was revised and cancelled by CIT u/s 263. It was held that there was a complete application of mind by the AO while examining the expenditure under the brand promotion and brand building. Thus, the view taken by the AO was prima facie correct and therefore, there was no reason to hold that such an order was erroneous or prejudicial to the interest of revenue. Refer, Fine Jewellery (India) Ltd. v. ACIT, 19 ITR 746.

In the case of Aditya Builders v. CIT (Admn.) (Mumbai) , VOL 25 PG 77, it had been decided that no finding that assessment order erroneous and prejudicial to interests of Revenue and Assessee consistently following one method of computing income hence Commissioner cannot assume jurisdiction and thrust his method on assesse.

The assessee had placed on record confirmations in assessment proceedings before the Assessing Officer. The Assessing Officer did not make any enquiry and accepted the fact on its face value. This was to be termed as a case of only half-hearted enquiry as no definite conclusion could be arrived at merely on the filing of confirmation before the Assessing Officer. In the present case, the Commissioner had given a direction to decide afresh. Such a direction did not cause prejudice to the assessee. Therefore, the Commissioner was justified in setting aside the order of the Assessing Officer as erroneous and prejudicial to the interests of the Revenue.  As regards the issue of reconciliation of tax deducted at source and trading account in various agricultural items, the Assessing Officer had not made due and proper enquiry and the Commissioner gave direction to decide afresh, which caused no prejudice to the assesse. Refer, Krishan Gopal (HUF) v. CIT, 25 ITR 69 (JP)(Trib.). 

The assessee declared the income from short term capital gains from investments in mutual funds,  securities. The Income was accepted under section 143(3) by making some inquiries. The  Commissioner under section 263 set aside the assessment to do the reassessment by proper inquiry.  On appeal by revenue the Court held that without arriving at a definite finding that the order is  erroneous the CIT cannot simply remand the matter to the AO for reconsideration. In adequate  inquiry, by itself ,will not make the order ‘erroneous’. Accordingly the Court held that the jurisdiction  under section 263 was wrongly invoked. Refer, CIT v. Gupta Spg. Mills Ltd, The Chamber’s Journal –October –P. 82 (Delhi)(HC).

Commissioner validly assumed  jurisdiction u/s 263 on the basis that AO had allowed depreciation on goodwill without assigning  any reasons. Refer, Fibres & Fabrics International v. CIT, 217 Taxman 352 (Karn.)(HC).   

Where Assessing Officer allowed assessee's claim for set off of unabsorbed depreciation without  examining material available on record. Order passed by him was erroneous and prejudicial to interest  of revenue and, thus Commissioner was justified in setting aside same in exercise of his revisional power. Refer, Dharti Dredging & Infrastructure Ltd. v. Addl. CIT, 35 Taxmann.com 563.  

When the revising authority feels that the inquiry was inadequate, it must make enquiry and show that  assessment order was erroneous. It has no power to remand and direct AO to conduct enquiry. Refer, DIT v. Jyoti Foundation, 357 ITR 388.

The Tribunal while analysing the issue confirmed that there was no application of mind while considering  assessment under s. 143. The procedure adopted would have implication on tax computation. Held, original assessment order was not only erroneous but also prejudicial to interests of Revenue, and hence, s. 263 was rightly invoked by the Commissioner. Refer, Appollo Tyres Ltd. .v. DCIT, 360 ITR 36.
·         Time Limit :  Order passed after lapse of time limit is erroneous. Refer, CIT v. J. L. Morrison (India) Ltd, 366 ITR 593.   

·         Two View : Karnataka High court decided that wne  TPO’s acceptance  of ALP shows two views are possible & CIT has no jurisdiction to revise assessment. Refer, CIT v. SAP labs Pvt. Ltd.  Chennai ITAT confirmed the same  in the case of Shriram Investments Limited v .Addl. CIT, 51 SOT 5(URO)  

Again in the case of CIT v. Hari Singh & Associates, 102 DTR 306, it was held that merely because CIT held a different opinion holding that addition ought to be treated as undisclosed income and accordingly revision was  held to be invalid.

The assessee was allowed investment allowance by the income tax officer. The Commissioner, in revision u/s. 263 of the I.T Act, 1961, withdrew it on the ground that the assessee manufactured rectified spirit and denatured spirit and sold arrack after diluting the rectified spirit. Held that item 1 of the Eleventh Schedule reads “Beer, wine, and other alcoholic spirits”. The words “other alcoholic spirits” are grouped with the words “beer” and “wine”. “Beer” and “wine” are alcoholic spirits which are fit for human consumption. They are in other words postable alcoholic spirits. That is not the case with rectified spirit or industrial alcohol. Industrial alcohol or rectified spirit was not intended to be included within “other alcoholic spirits.” The revision held to be not valid and assessee could not be denied investment allowance. Refer, CIT v. O.R. Distilleries Ltd, 349 ITR 215.

Assessing Officer in assessment order is not required to give detailed reasons and once it is clear that  there was application of mind by an enquiry, Commissioner, merely because he entertains a different  opinion in matter, cannot invoke his powers under section 263. Refer, Spectra Shares & Scrips (P.) Ltd. v. CIT, 91 DTR 289 (AP)(HC).  


·         Other : When tax payer is entitled to 80-IA benefit for ten consecutive assessment years then benefit cannot be denied benefit on ground it ceased to be a small scale undertaking & hence revision not justified. Refer, ACE Multi Axes Systems Ltd. v. Deputy CIT, 367 ITR 266.

In case of a charitable trust, it is only income from investment or deposit which has been made in  violation of section 11(5) that is liable to be taxed and that violation under section 13(1)(d) does not  tantamount to denial of exemption under section 11 on total income of assessee-trust. Revisional order  held to be not validRefer, CIT .v. Fr. Mullers Charitable Institutions, 363 ITR 230
 
In the absence of recording an opinion over why orders of assessment under s.143(3) required initiation of revisionary proceeding, mere expression that certain items of expenses, etc. were required to be examined, did not satisfy requirement of issue of show-cause, notice under s. 263.  Refer, IBM India (P.) Ltd, 216 Taxman 170 (Mag.) (Karn)(HC).

Since the Assessing Officer, on basis of detailed inquiry found that 'SG' had rendered services in his  individual capacity, order of Commissioner under s. 263 on ground that no services for procuring order were rendered at all was to be set aside.   Refer, CIT v. Amar Kant Gupta (Dr.), 216 Taxman 149 (Mag.) (All)(HC).

The transport subsidy is aimed at reducing the cost of production of the industrial undertakings  covered by the transport subsidy scheme and, thus, there is a first degree nexus between the transport  subsidy, on the one hand, and the cost of production, on the other and when the cost is reduced it  naturally helps in earning of profit and at times higher profits and such profits and gains ought to be  treated to be profits and gains derived from, or derived by, the industrial undertaking.  Held allowing the appeal, that the assessee was entitled to claim deduction under section 80-IA in   respect of the amount which had been received by it in the form of transport subsidy, and revision u/s  263 was not justified. Refer, Patkai Coal Products Pvt. Ltd. v. CIT, 356 ITR 528 (Gauhati) (HC)

Assessee being a foreign  company, for many years, computed income at 10% of “gross receipts” and subtracted accepted  expenditure therefrom, as per DTAA between its country and India . Method unknown to law of India, it could be corrected in reversionary proceedings.  Refer, DIT v. Hyundai Heavy Industries Co. Ltd, 217 Taxman 134 (Utt.)(HC).

·         Rectification order :  An order was passed under section 264 by the Commissioner against the order of Assessing Officer under section 143 (3).Where in an amount of Rs 6.80 lakhs was allowed and balance amount of Rs 31.25 lakhs was disallowed. The assessee moved an application 154 before the Commissioner. The Commissioner declined to entertain the application placing reliance on section 154(IA). On writ the court held that the application was not made before the Assessing Officer who passed the order which was the subject-matter of revision, but, the application was made before the revisional authority himself for rectification. Such an application was maintainable and was not barred by section 154(IA).Accordingly the writ petition was allowed. Refer, Janata Co-Operative Bank Ltd v. CIT, 349 ITR 715.

·         Deductions not claimed : The assessee filed the return of income wherein he has shown dividend and long term capital gains as taxable and forgot to claim the exemption .On receipt of intimation the assessee filed the revised the return claiming the exemption. The Assessing Officer has not taken the congnisance of revised return as the same was filed beyond time limit specified under section 139(5).The Assessee filed the revision application under section 264 against the intimation under section 143(1).The Commissioner rejected the application under section 264 . The Assessee also filed rectification application before the Assessing Officer under section 154, which was pending. The Honourable Court quashed the order passed under section 264 and directed the Assessing Officer to dispose the application keeping in mind the object of circular dated 11-4-2005.The Court also observed that in any civilized system, the assessee is bound to pay the tax which he is liable under the law to the Government .The Government on the other hand is obliged to collect only that amount of tax which is legally payable by an assessee .The entire object of administration of tax is to secure the revenue for the development of the Country and not to charge assessee more than that which is due and payable by the assesse. Refer, Sanchit Software & Solutions (P.) Ltd, 349 ITR 404.  

·         Principal of Natural justice:   The assessee was non-executive director of company. He resigned from the Board on 29th April 1994. On 27 the September , 2006 the assessee was issued notice to recover the tax due of the company for the assessment years 1986-87 to 1993-94 under section 179 of the income tax Act. The assessee informed to the assessing Officer that the Company is a partnership form having 80% share hence the assessing Officer must proceed against the firm for recovery due s of the Company. The Assessing Officer rejected the application of assessee. Assessee moved petition under section 264 which was rejected by the Commissioner without giving an opportunity of hearing. On writ petition the Court set aside the order of Commissioner and Assessing Officer and directed the Assessing Officer to pass an order after following principle of natural justice and including granting a personal hearing . refer, Bhupatlal J.Shah v. ITO, 210 Taxman 481.    

The grant of an opportunity to the assessee is a necessary concomitant of the enquiry. In this case, neither in the show-cause notice nor in the subsequent show-cause notice nor even in any proceedings under section 263, had he afforded an opportunity to the assessee on the issue of verification of the genuineness of the outstanding creditors or debtors; the Commissioner travelled beyond the issues contained in the notices and thus his order on that count was not in accordance Revision  jurisdiction cannot be invoked where issues raised were subject matter of appeal (HUF) v. CIT, 25 ITR 69 (JP)(Trib.).




·         TPO order : Mumbai ITAT in the case of Essar Steel Limited v. ACIT held that order passed by TPO cannot be subject to revision.

·         CIT (A) Order :   On appeal Commissioner (Appeals) deleted the penalty. Thereafter the Commissioner passed the revision order on the ground that the quantification of penalty in the original order was omitted .The Court held that once penalty itself had been set aside by Commissioner (Appeals), provisions of section 263 could not be invoked by revenue to impose penalty. Refer, CIT v Trident Ltd, 216 Taxman 64.   

Revision  jurisdiction cannot be invoked where issues raised were subject matter of appeal. Refer, Parminder Singh v. ACIT, 81 DTR 321.  

Where order of revision passed by Commissioner under section 263 was set aside , assessment order  passed by Commissioner under section 143(3) in pursuance of such revision order automatically became  infructuous. Appeal of revenue was dismissed. Refer, CIT .v. Aditi Developers, 223 Taxman 14.

·         Audit Objection : Revision of orders prejudicial to revenue-Revision proceedings on the  basis of audit objection is not tenable in law. Refer, Jaswinder Singh v. CIT, 56 SOT 85



  

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