IT: Where issues raised under section 263 were subject-matter of appeal, provisions of section 263 were not attracted
■■■
[2013] 33 taxmann.com 616 (Amritsar - Trib.)
IN THE ITAT AMRITSAR BENCH
Parminder Singh
v.
Assistant Commissioner of Income-tax*
H.S. SIDHU, JUDICIAL MEMBER
AND B.P. JAIN, ACCOUNTANT MEMBER
IT APPEAL NOS. 210 TO 214 (ASR.) OF 2012
[ASSESSMENT YEARS 2004-05 TO 2008-09]
NOVEMBER 22, 2012
Section 263 of the Income-tax Act, 1961 - Revision - Of orders prejudical to interest of revenue [Doctrine of merger] - Assessment years 2004-05 to 2008-09 - Commissioner set aside assessment orders passed in case of assessees observing that assessees had made investments in various immovable properties in name of 'JK' and 'MK' but no addition on account of said income was made in hands of assessees - Whether Assessing Officer had conducted all enquiries of transactions of property raising queries during assessment proceedings of assessees and assessees also filed affidavits of 'JK' and 'MK' wherein they admitted that all transactions of property were on their own account and, therefore, assessment orders could not be termed erroneous and prejudicial to interest of revenue - Held, yes - Whether, further, issues raised by Commissioner were subject-matter of appeal before Commissioner (Appeals) in case of 'JK' and 'MK' and also assessee, provisions of section 263 were not attracted - Held, yes [Paras 9.11 & 10] [In favour of assessee]
FACTS
■ The assessees were assessed under section 143(3)/153A. Later on, the Commissioner invoking section 263 set aside assessment orders on the ground that the property transactions made by 'JK' and 'MK' belonged to the assessees and since same were not considered by the Assessing Officer in the assessment proceedings, assessment orders were prejudicial to the interest of revenue.
■ On appeal :
HELD
■ The Assessing Officer in the case has conducted all the enquiries of the transactions of property carried out by 'JK' and 'MK' by raising queries during assessment proceedings of assessee by issuing summons under section 131 to 'JK' and 'MK'. Not only this Assessing Officer of the aforesaid assessees wrote letter to the Assessing Officer, Kapurthala to record satisfaction and frame assessment in the case of 'JK' and 'MK' for all the property transactions carried out by them against which provisions of section 263 have been invoked in the case of the assessees. During assessment proceedings assessee filed detailed reply to the queries raised and also filed affidavits of 'JK' and 'MK', wherein they admitted that all the transactions of property are on their own account. Assessments in the case of 'JK' and 'MK' have been completed by the Assessing Officer, Kapurthala and as such provisions of section 263 are not attracted in the case of aforesaid assessees since twin conditions as aforesaid do not exist and Assessing Officer while framing assessment has conducted all enquiries. [Para 9.11]
■ Further, the provisions of section 263 are not attracted in the case of assessees since the issues raised under section 263 were subject-matter of appeal before the Commissioner (Appeals) in the case of 'JK' and 'MK' and assessment of assessee was also subject-matter of appeal before the Commissioner (Appeals), Ludhiana for the assessment year 2008-09 in view of provisions of section 263(1)(c). [Para 10]
■ Further to invoke the provisions of section 263, the Commissioner had to come to a firm decision that the order of the ITO was erroneous as well as prejudicial to the interest of revenue. In the present case, for the same property transactions of 'JK' and 'MK' provisions of section 263 have been invoked in the case of assessees. The Commissioner has not concluded in whose hands transactions are to be taxed and which transactions are to be taxed. The Commissioner has not pointed out what errors have been committed. Information asked for during assessment proceedings has been provided and examined by the Assessing Officer. No decision about the erroneous nature of the order has been taken by Commissioner and, therefore, the order passed in all the years in the case of all the assessees are bad in law. [Para 11]
Surinder Mahajan for the Appellant. R.L. Chhanalia for the Respondent.
ORDER
1. These thirteen appeals of three different assessees i.e. Shri Parminder Singh, in ITA Nos. 210 to 214/Asr/2012, M/s Kapurthala Estates (P) Ltd. in ITA Nos. 205 to 209/Asr/2012 and M/s Kapurthala Promoters & Developers (P) Ltd. in ITA Nos. 202 to 204/Asr/2012 for different assessment years are arising out of different orders of learned CIT (Central), Ludhiana, passed under s. 263 of the IT Act, 1961 (in short, 'the Act') for different assessment years. The different assessees mentioned hereinabove have raised grounds of appeals in different years as under :
Name Asst. yr. ITA No.
1. Shri Parminder Singh 2004-05 210/Asr/2012
-do- 2005-06 211/Asr/2012
-do- 2006-07 212/Asr/2012
-do- 2007-08 213/Asr/2011
-do- 2008-09 214/Asr/2011
"1. That order under s. 263 of the Act, passed by learned CIT (Central), is illegal and without jurisdiction.
2. That learned CIT has grossly erred in holding that assessment order passed by the AO was erroneous and prejudicial to the interest of Revenue. Action of the learned CIT in invoking the provisions of s. 263 of the Act is illegal and bad in law.
3. (a) That the learned CIT has grossly erred, in concluding that property transactions made by Shri Jeetu Keshi belongs to the assessee. Conclusion drawn by the learned CIT is without any material on records and as such is illegal and bad in law.
(b) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since during assessment proceedings of the assessee, Shri Jeetu Keshi in response to notice under s. 131 of the Act appeared before the AO and in his statement recorded by the AO admitted that all property transactions belong to him only and assessee has nothing to do with those transactions.
(c) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since AO of the assessee (person searched) recorded his satisfaction and forwarded the documents to AO of Shri Jeetu Keshi for framing assessment in the case of Shri Jeetu Keshi.
(d) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since for same transactions, provisions of s. 263 have been invoked in the case of M/s Kapurthala Estates (P.) Ltd.
4. That the order of the learned CIT (Central) under s. 263 is arbitrary, unjust, is based on assumptions and presumptions and that no error existed or prejudice was caused to Revenue, therefore, the order of the CIT (Central), Ludhiana passed under s. 263 deserves to be quashed.
5. That learned CIT has grossly erred in setting aside the assessment framed with the directions to make fresh assessment de novo after properly examining the issues. Non-issuance of specific directions for assessment to be framed clearly proves that it is a case of only change of opinion and the assessment framed is neither erroneous nor prejudicial to the interest of the Revenue.
6. That the directions of the learned CIT are contrary to provisions of s. 263 of the Act since transactions pointed out stood taxed in the hands of Shri Jeetu Keshi and same were subject-matter of appeal before CIT(A), Jalandhar.
7. That the directions of the learned CIT are contrary to judgment of jurisdictional Punjab & Haryana High Court in the case of Paramjit Singh v. ITO [2010] 236 CTR (P&H) 466 : [2010] 37 DTR (P&H) 228 : [2010] 323 ITR 588 (P&H) wherein it has been held that once a document is in writing no oral evidence or statement can be used to consider it as incorrect.
8. That directions of the learned CIT are contrary to the judgment of Hon'ble Gujarat High Court and Hon'ble Madras High Court in the cases of CIT v. Smt. Minalben S. Parikh [1995] 127 CTR (Guj) 333 : [1995] 215 ITR 81 (Guj) and Venkata Krishna Rice Co. v. CIT [1987] 62 CTR (Mad) 152 : [1987] 163 ITR 129 (Mad) respectively, wherein it has been held that action under s. 263 which result in double taxation is not permitted under the law.
9. That the appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed of."
2. Kapurthala Estates (P) Ltd. 2004-05 205/Asr/2012
-do- 2005-06 206/Asr/2012
-do- 2006-07 207/Asr/2012
-do- 2007-08 208/Asr/2012
-do- 2008-09 209/Asr/2012
"1. That order under s. 263 of the Act, passed by learned CIT (Central), is illegal and without jurisdiction.
2. That learned CIT has grossly erred in holding that assessment order passed by the AO was erroneous and prejudicial to the interest of Revenue. Action of the learned CIT in invoking the provisions of s. 263 of the Act is illegal and bad in law.
3. (a) That the learned CIT has grossly erred in concluding that property transactions made by Shri Jeetu Keshi belongs to the assessee. Conclusion drawn by the learned CIT is without any material on records and as such is illegal and bad in law.
(b) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since during assessment proceedings of the assessee, Shri Jeetu Keshi in response to notice under s. 131 of the Act appeared before the AO and in his statement recorded by the AO admitted that all property transactions belong to him only and assessee has nothing to do with those transactions.
(c) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since AO of the assessee (person searched) recorded his satisfaction and forwarded the documents to AO of Shri Jeetu Keshi for framing assessment in the case of Shri Jeetu Keshi.
(d) That conclusion of the learned CIT that property transactions made by Shri Jeetu Keshi belongs to the assessee is illegal and bad in law since for same transactions, provisions of s. 263 have been invoked in the case of Shri Parminder Singh.
4. That the directions of the learned CIT are contrary to provisions of s. 263 of the Act since transactions pointed out stood taxed in the hands of Shri Jeetu Keshi and same were subject-matter of appeal before CIT(A), Jalandhar.
5. That the directions of the learned CIT are contrary to judgment of jurisdictional Punjab & Haryana High Court in the case of Paramjit Singh v. ITO [2010] 236 CTR (P&H) 466 : [2010] 37 DTR (P&H) 228 : [2010] 323 ITR 588 wherein it has been held that once a document is in writing, no oral evidence or statement can be used to consider it as incorrect.
6. That directions of the learned CIT are contrary to the judgment of Hon'ble Gujarat High Court and Hon'ble Madras High Court in the case of CIT v. Smt Minalben S. Parikh [1995] 127 CTR (Guj) 333 : [1995] 215 ITR 81 (Guj.) and Venkata Krishna Rice Co. v. CIT [1987] 62 CTR (Mad) 152 : [1987] 163 ITR 129 (Mad) respectively, wherein it has been held that action under s. 263 which result in double taxation is not permitted under the law.
7. That learned CIT has grossly erred in holding that no proper enquiries have been conducted by AO with respect to increase in sundry depositors while framing assessment under s. 143(3)/153A of the Act. Conclusion drawn by learned CIT is bad in law.
8. That learned CIT has grossly erred in setting aside the assessment framed with the directions to make fresh assessment de novo after properly examining the issues. Non-issuance of specific directions for assessment to be framed clearly proves that it is a case of only change of opinion and the assessment framed is neither erroneous nor prejudicial to the interest of the Revenue.
9. That the order of the learned CIT (Central) under s. 263 is arbitrary, unjust, is based on assumptions and presumptions and that no error existed or prejudice was caused to Revenue, therefore, the order of the CIT (Central), Ludhiana passed under s. 263 deserves to be quashed.
10. That the appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed of."
3. Kapurthala Promotors & Developers (P) Ltd. 2006-07 202/Asr/2012
-do- 2007-08 203/Asr/2012
-do- 2008-09 204/Asr/2012
"1. That order under s. 263 of the Act, passed by learned CIT (Central), is illegal and without jurisdiction.
2. That learned CIT has grossly erred in holding that assessment order passed by the AO was erroneous and prejudicial to the interest of Revenue. Action of the learned CIT in invoking the provisions of s. 263 of the Act is illegal and bad in law.
3. (a) That the learned CIT has grossly erred in concluding that property transactions made by Shri Mithlesh Kumar belongs to the assessee. Conclusion drawn by the learned CIT is without any material on records and as such is illegal and bad in law.
(b) That conclusion of the learned CIT that property transactions made by Shri Mithlesh Kumar to the assessee company is illegal and bad in law since during assessment proceedings of the assessee company Shri Mithlesh Kumar in response to notice under s. 131 of the Act appeared before the AO and in his statement recorded by the AO admitted that all property transactions belong to him only and assessee has nothing to do with those transactions.
(c) That conclusion of the learned CIT that property transactions made by Shri Mithlesh Kumar belongs to the assessee is illegal and bad in law since AO of Shri Parminder Singh, director of the company (person searched) recorded his satisfaction and forwarded the documents to AO of Shri Mithlesh Kumar for framing assessment in the case of Shri Jeetu Keshi.
(d) That conclusion of the learned CIT that property transactions made by Shri Mithlesh Kumar belongs to the assessee is illegal and bad in law since for same transactions, provisions of s. 263 have been invoked in the case of Shri Parminder Singh and M/s Kapurthala Estates (P) Ltd.
4. That the directions of the learned CIT are contrary to provisions of s. 263 of the Act since transactions pointed out stood taxed in the hands of Shri Mithlesh Kumar and same were subject-matter of appeal before CIT(A), Jalandhar.
5. That the directions of the learned CIT are contrary to judgment of jurisdictional Punjab & Haryana High Court in the case of Paramjit Singh v. ITO [2010] 236 CTR (P&H) 466 : [2010] 37 DTR (P&H) 228 : [2010] 323 ITR 588 (P&H) wherein it has been held that once a document is in writing, no oral evidence or statement can be used to consider it as incorrect.
6. That directions of the learned CIT are contrary to the judgment of Hon'ble Gujarat High Court and Hon'ble Madras High Court in the case of CIT v. Smt. Minalben S. Parikh [1995] 127 CTR (Guj.) 333 : [1995] 215 ITR 81 (Guj) and Venkata Krishna Rice Co. v. CIT [1987] 62 CTR (Mad) 152 : [1987] 163 ITR 129 (Mad) respectively, wherein it has been held that action under s. 263 which result in double taxation is not permitted under the law.
7. That learned CIT has grossly erred in holding that no proper enquiries have been conducted by AO with respect to increase in sundry depositors while framing assessment under s. 143(3)/153A of the Act. Conclusion drawn by learned CIT is bad in law.
8. That learned CIT has grossly erred in setting aside the assessment framed with the directions to make fresh assessment de novo after properly examining the issues. Non-issuance of specific directions for assessment to be framed clearly proves that it is a case of only change of opinion and the assessment framed is neither erroneous nor prejudicial to the interest of the Revenue.
9. That the order of the learned CIT (Central) under s. 263 is arbitrary, unjust, is based on assumptions and presumptions and that no error existed or prejudice was caused to Revenue, therefore, the order of the CIT (Central), Ludhiana passed under s. 263 deserves to be quashed.
10. That the appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed of."
4. Since the facts in all the above-mentioned appeals are identical, which are arising out of the order of the learned CIT (Central), Ludhiana, therefore, for the sake of convenience, all the above-mentioned appeals are being decided by this consolidated order.
5. The brief facts as arising from the orders of the learned CIT (Central), Ludhiana and on the basis of records before us in all the appeals mentioned hereinabove, are that search operations were carried out at the residential premises of Shri Parminder Singh and survey operations at the business premises of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. on 4th March, 2008. All the assessees for different years have filed returns of income for all the assessment years mentioned hereinabove and assessments were completed. The learned CIT (Central), Ludhiana, issued show-cause notices in all the above-mentioned cases asking the assessees why assessment order dt. 29th Dec, 2009 passed under s. 143(3)/153A should not be revised/modified/enhanced or set aside with the directions to make the assessments de novo. On perusal of the orders of the learned CIT (Central), the facts as stated by the learned CIT (Central) and as submitted by the learned counsel for the assessee are that in all the cases, case of the learned CIT is that investment has been made in various immovable properties in the form of land in the name of Jeetu Keshi and Mithlesh Kumar who are migrant labourers and were working simply as an office boy/peon with M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. For immovable properties purchased by Jeetu Keshi and Mithlesh Kumar during the asst. yrs. 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09, notices under s. 263 were issued to all the three assessees for same transactions and assessments for all the three assessees have been set aside. In the case of Kapurthala Estates (P) Ltd. case of learned CIT in addition to above issue is that proper enquiries have not been conducted by the AG with respect to increase in sundry creditors and provisions and advances against plots/depositors. In the case of Kapurthala Promoters & Developers (P) Ltd. case of learned CIT in addition to above issue is that proper enquiries have not been conducted by the AO with respect to increase in sundry creditors and provisions and advances against plots/depositors. Various submissions were made before learned CIT which did not find favour and assessments in all the cases have been set aside with the directions to make fresh assessment de novo after properly examining the issues and conducting proper enquiry and after affording an opportunity of being heard to the assessee. In the case of Shri Parminder Singh in orders passed under s. 263 of the Act, the learned CIT has held :
"Asst. yrs. 2004-05 and 2005-06 : Order is erroneous and prejudicial to interest of Revenue on the ground of property transactions made by assessee in the name of Shri Jeetu Keshi as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2004-05 to 2008-09 in the case of Kapurthala Estates (P) Ltd. and order under s. 263 of the Act for asst. yr. 2008-09 in the case of assessee.
Asst yr. 2006-07 : Order is erroneous and prejudicial to interest of Revenue on the ground of property transactions made by assessee in the name of Shri Mithlesh Kumar as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2006-07 to 2008-09 in the case of Kapurthala Estates (P) Ltd. and order under s. 263 of the Act for asst. yr. 2008-09 in the case of assessee.
Asst. yr. 2007 08 : Order is erroneous and prejudicial to interest of Revenue on the ground of property transactions made by assessee in the name of Shri Jeetu Keshi and Shri Mithlesh Kumar as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2007-08 and 2008-09 in the case of Kapurthala Estates (P) Ltd. and order under s. 263 of the Act for asst. yr. 2008-09 in the case of assessee.
Asst. yr. 2008-09 : Order is erroneous and prejudicial to interest of Revenue on the ground of property transactions made by assessee in the name of Shri Mithlesh Kumar as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2008-09 to 2008-09 in the case of Kapurthala Estates (P) Ltd. and order dt. 27th March, 2012 for asst. yr. 2008-09 in the case of M/s Kapurthala Promoters & Developers (P) Ltd."
5.1 In the case of M/s Kapurthala Estates (P) Ltd. in orders passed under s. 263 of the Act, the learned CIT has held :
"Asst. yrs, 2004-05, 2005-06 and 2006-07 : Order is erroneous and prejudicial to interest of Revenue as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2007-08 and 2008-09 in the case of assessee's own case.
Asst yr. 2007-08 : Order is erroneous and prejudicial to interest of Revenue as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yr. 2008-09 in the case of assessee's own case.
Asst. yr. 2008-09 : Learned CIT has held assessment order to be erroneous and prejudicial to interest of Revenue as per paras 10 to 53 pp. 11 to 36 of the order."
5.2 In the case of Kapurthala Promoters & Developers (P) Ltd. in orders passed under s. 263 of the Act, learned CIT has held :
"Asst yr. 2006-07 : Order is erroneous and prejudicial to interest of Revenue as per detailed reasons discussed in orders dt. 26th March, 2012 made under s. 263 of the Act for asst. yrs. 2007-08 and 2008-09 in the case of assessee's own case and order under s. 263 of the Act dt. 26th March, 2012 in the case of Kapurthala Estates (P) Ltd. for asst. yrs. 2006-07 to 2008-09.
Asst. yr. 2007-08 : Order is erroneous and prejudicial to interest of Revenue as per detailed reasons discussed in orders dt. 27th March, 2012 made under s. 263 of the Act for 2008-09 in the case of assessee's own case and order under s. 263 of the Act dt. 26th March, 2012 in the case of Kapurthala Estates (P) Ltd. for asst. yrs. 2007-08 and 2008-09.
Asst yr. 2008-09 : Order is erroneous and prejudicial to interest of Revenue as per detailed reasons discussed in orders under s. 263 of the Act dt. 26th March,. 2012 in the case of Kapurthala Estates (P) Ltd. for asst. yr. 2008-09."
6. It appears that all the orders passed under s. 263 of the Act are based on orders under s. 263 passed by the learned CIT dt. 26th March, 2012 in the case of M/s Kapurthala Estates (P) Ltd. for the asst yr. 2008-09 and as per detailed discussions of the learned CIT in the said order in the relevant paras who has stated that Shri Parminder Singh in his statement recorded under s. 132(4) of the Act on 4th March, 2008 has admitted that Shri Jeetu Keshi and Mithlesh Kumar were employees of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. (para 10, p. 11 of order) document collected by the AO from the office of Sub-Registrar/Tehsildar it is found that various property transactions have been conducted by Jeetu Keshi and Mithlesh Kumar. Assessment order is considered to be erroneous and prejudicial to the interest of Revenue since no addition on account of income including investments for property transactions of Jeetu Keshi and Mithilesh Kumar have been made (para 11, p. 12 of the order). Parminder Singh in his statement has admitted that registration deeds have been got done by Jeetu Keshi and Mithilesh Kumar on behalf of M/s Kapurthala Estate (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. (para 12, p. 13 of order). Submission of the assessee that assessee retracted from the statement vide his letter dt. 10th Oct., 2008 is not tenable (para 13, pp. 14 and 15 of orders). Contention of the assessee before AO that Jeetu Keshi and Mithilesh Kumar were never employees of the companies since their names neither appear in the attendance register of the assessee companies nor any salaries have been paid to them as per books of account, is not tenable since books of account were not available at the time of search (paras 14 to 16, pp. 15 and 16 of order). Property transactions carried out by Jeetu Keshi and Mithilesh Kumar on behalf of M/s Kapurthala Estate (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. are duly recorded in books of account but property transactions carried out by them in their individual name have not been recorded by the assessee (para 17, pp. 16 to 18 of order). Jeetu Keshi and Mithilesh Kumar in their statements recorded by the AO under s. 131 of the Act that they are doing property transactions on their own behalf. Mere admission made by them ignoring their capacity is not sufficient (para 18, p. 18 of order). AO has not examined whether Nepali resident can conduct property business in India or not (para 19, p. 18 of order). Objection of the assessee to the statement of Jeetu Keshi have no force in view of admission of Parminder Singh (para 21, pp. 19 and 20 of the order). AO of these assessees conveyed information of such transactions to the AO of Jeetu Keshi and Mithlesh Kumar who has made the assessment in their hands. Appeals filed by Jeetu Keshi and Mithilesh Kumar have since been decided by learned CIT(A) and assessees are in appeal before Hon'ble Tribunal but fact remains that these persons are migrant labourers (para 22, p. 20 of the order). Submission of the assessee that no oral evidence is admissible once the documents contains all the terms and conditions and reliance on decision of Hon'ble Punjab & Haryana High Court in the case of Paramjit Singh v. ITO [2010] 323 ITR 588 are rejected since facts of the case are not applicable to assessee's case (para 24, p. 21 of the order). Assessee cannot escape from responsibility of explaining the property transactions by these two persons since these documents have not been found and seized from assessee's residence or business premises (para 25, pp. 21 and 22 of the order). Assessments in the case of Jeetu Keshi and Mithlesh Kumar have been made without any kind of cooperation from these persons (paras 26 to 28, pp. 23 and 24 of order) contention from these persons (paras 26 to 28 pp. 23 and 24 of the order). Contention of the assessee that assessee cannot be held responsible for property transactions of Jeetu Keshi and Mithilesh Kumar since their statements were recorded in response to summons under s. 131 of the Act, they filed their IT returns of which assessment stood completed wherein all transactions of property have been considered is not tenable, since grave prejudice has been caused to the Department by not making addition in the hands of assessee and its companies (para 29, p. 24 of the order). Submission of the assessee that proceedings under s. 263 of the Act cannot be initiated since assessments framed in the case of Jeetu Keshi and Mithlesh Kumar stood merged with the order of CIT(A) since all property transacted by them had been subject-matter of appeal before CIT(A). Also there should not be double taxation of the income cannot be accepted (para 30, pp. 24 and 25 of the order). AO has not properly applied his mind (para 31. p. 25 of the order ). In paras 32 to 34, learned CIT has discussed enquiries to be conducted regarding the truth and genuineness of deposits and loan (pp. 25 to 28, of the order ). In para 35, learned CIT has relied upon various case laws (pp. 28 to 31, of the order). Submission of the assessee that during assessment proceedings copies of accounts of creditors/depositors and confirmation in respect of few cases of creditors and depositors were filed as per questions/queries raised which implies that AO has applied his mind and as such provision of s. 263 of the Act cannot be invoked. It was further stated that items of regular assessment cannot be added back in proceedings under s. 153A when no incriminating documents were found during search. Assessee further submitted that proceedings under s. 263 of the Act cannot be initiated on account of inadequate enquiries. These submissions are not acceptable (paras 36 to 49, pp. 31 to 36 of the order). Proceeding under s. 263 have been initiated in the case of M/s Kapurthala Estates (P) Ltd., M/s Kapurthala Promoters & Developers (P) Ltd on the issue of property transactions done by Shri Jeetu Keshi and Mithlesh Kumar in different years. Proceedings under s. 263 have also been initiated in the case of Shri Parminder Singh separately on the similar issue since AO has not examined whether Parminder Singh has made some investment on his own in such property (paras 50 to 52 p. 36 of the order).
7. The learned counsel for the assessee argued and submitted in written submissions placed before this Bench, which for the sake of clarity are reproduced as under :
"1. Detailed submission have been made vide letter dt. 28th Feb., 2012, 16th March, 2012 and letter dt. 21st March, 2012 pp. 1 to 13, page Nos. 155 to 179 and page Nos. 306 to 313 respectably of paper book in the case of Shri Parminder Singh.
2. That learned Asstt. CIT during assessment proceedings issued notice dt. 8th Dec, 2009 enclosed at page Nos. 191 to 193 of paper book wherein he raised various queries on the documents of property transactions of Jeetu Keshi and Mithlesh Kumar collected from Tehsildar and Sub-Registrar and assessee filed detailed reply vide letter dt. 17th Dec, 2009 (enclosed at page Nos. 194 to 230 of the paper books). Assessee vide letter dt. 19th Feb., 2009 filed affidavit of Jeetu Keshi and Mithlesh Kumar confirming that transactions made by them are their own account, enclosed at pp. 231 to 236 of the paper book. During assessment proceedings each and every paper was explained (page Nos. 39 to 81 of paper book).
3. Copy of assessment order in case of Jeetu Keshi and Mithlesh Kumar are enclosed at pp. 237 to 261 of the paper book.
4. That copy of letter of Asstt. CIT addressed to ITO, Kapurthala for making assessment in the case of Jeetu Keshi and Mithlesh Kumar are enclosed at pp. 262 to 265 of the paper book.
5. Copy of satisfaction note by ITO, Kapurthala in the case of Jeetu Keshi and Mithlesh Kumar enclosed at page Nos. 266 to 272 of the paper book.
6. That copies of various notices issued to Jeetu Keshi and Mithlesh Kumar enclosed at pp. 273 to 285 of the paper book.
7. Transactions carried out by Jeetu Keshi and Mithlesh Kumar explained at page Nos. 286 to 305 of the paper book.
8. That to invoke provisions of s. 263 of the Act order of the learned AO should be erroneous as well as prejudicial to the interest of Revenue. Both the conditions must coexist.
Reliance is being placed on :
(a) Malabar Industrial Co. Ltd. v. CIT [2000] 159 CTR (SC) 1 : [2000] 243 ITR 83 (SC);
(b) Smt. Daljeet Kaur v. CIT [1990] 86 CTR (Gau) 167 : [1990] 184 ITR 149
(c) CIT v. George Williamson (Assam) Ltd. [2001] 170 CTR (Gau) 329 : [2001] 250 ITR 747 (Gau);
(d) CIT v. Gabrial India Ltd. [1993] 114 CTR (Bom) 81 : [1993] 203 ITR 108 (Bom.).
9. That words 'erroneous and prejudicial to the interest of Revenue' have not been defined in the law. An order cannot be termed as erroneous unless it is not in accordance with law. If an ITO acting in accordance with law makes certain assessment, the same cannot be branded as erroneous simply because, the order should have been written more elaborately. Case may be visualized where the ITO while making an assessment examines the accounts makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimates himself. On perusal of the records one may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the CIT he would have estimated the income at a high figurer than the one determined by the ITO himself at the higher figures. This is because -the ITO has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous. It may be said in such a case that the order in question is prejudicial to the interest of the Revenue.
Reliance is being placed on :
(a) CIT v. Gabrial India Ltd. (supra);
(b) Malabar Industrial Co. Ltd. v. CIT (supra).
10. That order passed by the AO after enquiring on all the matters cannot be held to be erroneous because every loss of revenue as a consequence of an order of AO cannot be treated as prejudice to the interest of Revenue.
For this proposition reliance is being placed on :
(a) CIT v. Arvind Jewellers [2002] 177 CTR (Guj) 546 : [2003] 259 ITR 502 (Guj): [2002] 124 Taxman 615 (Guj).
(b) CIT v. Sunbeam Auto Ltd. [2009] 227 CTR (Del) 133 : [2009] 31 DTR (Del) 1 : [2011] 332 ITR 167 (Del): [2010] 189 Taxman 436 (Del),
(c) CIT v. Vinod Kumar Gupta [2007] 165 Taxman 225 (P&H);
(d) CIT v. Design & Automation Engineers (Bombay) (P) Ltd. [2008] 13 DTR (Bom) 145 : [2010] 323 ITR 632 (Bom): [2009] 177 Taxman 9 (Bom);
(e) CIT v. Munjal Castings [2008] 2 DTR (P&H) 20 : [2008] 303 ITR 23 : [2008] 168 Taxman 241 (P&H);
(f) CIT v. Max India Ltd. [2007] 213 CTR (SC) 266 : [2007] 295 ITR 282 (SC): [2008] 166 Taxman 188 (SC);
(g) Ranka Jewellers v. Addl. CIT [2011] 238 CTR (Bom) 153 : [2010] 38 DTR (Bom) 293 : [2010] 328 ITR 148 (Bom) : [2010] 190 Taxman 265 (Bom);
(h) CIT v. Mahendra Kumar Bansal [2008] 214 CTR (All) 349 : [2008] 297 ITR 99 (All);
This will meet case of the learned CIT referred in paras 8(a), 8(b), 8(f), 8(o) and 8(q)
11. That the assessee, vide aforesaid letters, further explained that provision of s. 263 of the Act are not attracted since issues raised in the notice under s. 263 of the Act were subject-matter of appeal before learned CIT(A) and on the basis of doctrine of merger, order passed by the AO merged with order of learned CIT(A) which is not amenable under s. 263 of the Act in view of provisions of s. 263(l)(c).
For this proposition, reliance is being placed on :
(a) Punjab State Civil Supplies Corporation Ltd. v. CIT [1993] 109 CTR (P&H)(FB) 378 : [1993] 200 ITR 536 (P&H)(FB);
(b) CIT v. Shri Arbuda Mills Ltd. [1998] 147 CTR (SC) 474 : [1998] 231 ITR 50 (SC);
(c) CIT v. Jaykumar B. Patil [1999] 156 CTR (SC) 476 : [1999] 236 ITR 469 (SC);
(d) Ranka Jewellers v. Addl. CIT (supra);
(e) CIT v. Shalimar Housing & Finance Ltd. [2009] 24 DTR (MP) 58 : [2010] 320 ITR 157 (MP).
This will, meet case of the learned CIT referred in paras 8(e), 8(f), 8(k), 8(m) and 8(p).
12. That it again is an established law that action under s. 263 of the Act, which results in double taxation is not permitted under the law :
Reliance is being placed on :
(a) CIT v. Smt. Minalben S. Parikh [1995] 127 CTR (Guj) 333 : [1995] 215 ITR 81 (Guj);
(b) Venkata Krishna Rice Co. v. CIT [1987] 62 CTR (Mad) 152 : [1987] 163 ITR 129 (Mad).
13. That it is submitted that statement of Parminder Singh recorded under s. 132(4) on 4th March, 2008 has been retracted by him and same had been subject-matter of appeal for the asst. yr. 2008-09. Copy of appeal order enclosed at pp. 108 to 154 of the paper book. No interference can be drawn from the statement of the assessee since same has been retracted and also same was subject-matter of appeal before CIT(A). This will meet case of the CIT referred to in paras 8(d), 8(i).
14. That no adverse inference can be drawn in the case of assessee because :
Sales effected by Jeetu Keshi and Mukesh Kumar on behalf of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. have been duly recorded in the books of account of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd.
Direct sales and purchases made by Jeetu Keshi and Mithlesh Kumar cannot be held as transactions of assessee since the same are evidenced by written registered sale deeds. Your Honour's attention is invited to judgment of Hon'ble Punjab & Haryana High Court in the case of Paramjit Singh v. ITO [2010] 236 CTR (P&H) 466 : [2010] 37 DTR (P&H) 228 : [2010] 323 ITR 588 (P&H).
This will meet case of learned CIT referred to in paras 8(c), 8(i)
15. That it is an established law that CIT had to come to a firm that the order of ITO was erroneous and prejudicial to the interest of Revenue. Here in this case for same property transactions of Jeetu Keshi and Mithlesh Kumar provisions of s. 263 of the Act have been invoked in the case of Parminder Singh, Kapurthala Estates (P) Ltd. and Kapurthala Promoters & Developers (P) Ltd. Learned CIT has not concluded in whose hands transactions are to be taxed and which transactions are to be taxed. Similar is position about sundry creditors, depositors, advances against plots since learned CIT has not pointed out what errors have been committed. Information asked for during assessment proceedings has been provided and examined by AO. No decision about the erroneous nature of the order has been taken by CIT which is not permitted under the law.
Reliance is being placed on :
(a) CIT v. Kanda Rice Mills [1990] 85 CTR (P&H) 5 : [1989] 178 ITR 446 (P&H);
(b) CIT v. Unique Autofelts (P) Ltd. [2009] 30 CTR (P&H) 231.
This will meet case of the CIT referred to in paras 8(t) and 8(u).
16. Reliance of CIT on various case laws referred to in para 8(s), it is submitted that facts of the cases relied upon are altogether different.
17. The case of CIT referred to in paras 8(h), 8(m) are not relevant for invoking provisions of s. 263 of the Act."
8. The learned Departmental Representative, Mr. R.L. Chhanalia, appearing on behalf of the Revenue relied upon the orders of the learned CIT passed in each and every case of the assessees.
9. We have heard the rival contentions and perused the facts of the case. We find that case of the learned CIT in all the above-mentioned appeals is that investments have been made in various immovable properties in the form of land in the name of Shri Jeetu Keshi and Shri Mithlesh Kumar by above-mentioned assessees. Immovable properties purchased by Shri Jeetu Keshi and Mithlesh Kumar during the asst. yrs. 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 belong to the abovesaid assessees. In the case of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P.) Ltd. the learned CIT (Central) has further observed that the AO has not conducted proper enquiries with respect to increase in sundry creditors and provisions and advances against plots/depositors. He further observed in his order that admission of Jeetu Keshi and Mithlesh Kumar in their statements recorded by the AO under s. 131 of the Act that they are doing property transactions on their own, assessments framed by the AO of Jeetu Keshi and Mithlesh Kumar wherein all the abovesaid property transactions have been considered and brought to tax. Appeals filed by Shri Jeetu Keshi and Shri Mithlesh Kumar before the learned CIT(A) have been decided and further appeals filed by Shri Jeetu Keshi and Mithlesh Kumar before the Tribunal, Amritsar, wherein properties in questions are the subject-matter and are not tenable in view of the statement of Shri Parminder Singh. The learned CIT further observed that property transactions carried out by Jeetu Keshi and Mithlesh Kumar on behalf of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. are duly recorded in the books of these companies. But property transactions carried out in their individual capacities have not been recorded by abovesaid these three assessees. Assessment order is erroneous and prejudicial to the interest of the Revenue since no addition on account of Income including investment for property transactions of Jeetu Keshi and Mithlesh Kumar have been made in the hands of abovesaid three assessees. The learned CIT is of the opinion that the abovesaid assessees cannot escape from the responsibility of explaining property transactions made by Jeetu Keshi and Mithlesh Kumar in their individual names only because these documents have not been found and seized from the premises of abovesaid assessees. The learned CIT (Central) has further observed that the contention of the assessee that the assessee is not responsible for property transactions of Jeetu Keshi and Mithlesh Kumar since their statements were recorded, they filed their IT returns of which assessment stood completed wherein all transactions of property have been considered is not tenable, since grave prejudice has been caused to the Department by not making addition in the hands of assessee and its companies. The learned CIT has also rejected the submission of the assessee that proceedings under s. 263 of the Act cannot be initiated since assessments framed in the case of Jeetu Keshi and Mithlesh Kumar stood merged with the order of the learned CIT(A) because all property transacted by them had been subject-matter of appeal before the learned CIT(A). Submission of the assessee that provisions of s. 263 cannot be invoked for double taxation of same income and same issue for different assessees has been rejected by the learned CIT (Central). The contention of the assessee that Shri Jeetu Keshi and Shri Mithlesh Kumar were never employees of any of the above-mentioned three assessees as per books of account and attendance register produced during assessment proceedings has been rejected by the learned CIT (Central) on the ground that the books were not available at the time of search.
9.1 The learned counsel for the assessee has drawn our attention to paper books 191 to 193 in the case of Shri Parminder Singh which is copy of notice dt. 8th Dec, 2009 issued by the AO of Shri Parminder Singh during assessment proceedings for the asst. yrs. 2002-03 to 2008-09 in which the assessee has been asked to explain the property transactions carried out by Shri Jeetu Keshi and Shri Mithlesh Kumar, as power of attorney holder as well as property transactions in their individual names. Our attention has been drawn to paper book 194 in the case of Shri Parminder Singh which is reply to notice dt. 8th Dec, 2009 in which it has been explained that registration deed on power of attorney basis made by Shri Jeetu Keshi and Mithlesh Kumar are duly recorded in the books of account of M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. It has been further explained that the assessee is not responsible for the property transactions carried out by Shri Jeetu Keshi and Mithlesh Kumar in their individual names.
9.2 The learned CIT (Central) has also observed these facts in para 17, pp. 16 to 18 of the order under s. 263 of the Act in the case of M/s Kapurthala Estates (P) Ltd. for the asst. yr. 2008-09. The learned counsel for the assessee has drawn our attention to paper books 231 to 236 which are affidavits of Shri Jeetu Keshi and Mithlesh Kumar filed by Shri Parminder Singh during his assessment proceedings for the asst. yrs. 2002-03 to 2008-09 before the AO. In these affidavits both Shri Jeetu Keshi and Mithlesh Kumar had admitted that they are carrying on business of property dealing i.e. sales, and purchases of properties and also sales and purchase of property on commission basis. All the purchases of property have been made from their own funds and M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. and Shri Parminder Singh do not have any interest in business of sales and purchases of properties carried out by Shri Jeetu Keshi and Mithlesh Kumar in their individual names.
9.3 Our attention was drawn to paper books 237 to 261 which are copies of assessment orders passed by the AO, Kapurthala in the case of Shri Jeetu Keshi and Shri Mithlesh Kumar. It was highlighted by the learned counsel for the assessee that paper books 244, 245, 257 and 258 are the statements of Shri Jeetu Keshi and Shri Mithlesh Kumar recorded by the AO of above-mentioned three assessees during their assessment proceedings on 18th Dec, 2009 and 17th Dec, 2009 respectively, wherein both Shri Jeetu Keshi and Mithlesh Kumar have admitted that they are in the business of property dealings and all the transactions of sales and purchases of properties confronted to them have been made by them from their own account and did not have any interest to these transactions. Shri Jeetu Keshi and Mithlesh Kumar have further confirmed that they are not employees of the aforesaid three assessees.
9.4 It was further argued by the learned counsel for the assessee that paper books 240 to 243 and 245 to 256 are details of transactions of property considered by the AO of both Shri Jeetu Keshi and Mithlesh Kumar in their assessment proceedings. The same set of transactions have been referred to by the learned CIT (Central) in the proceedings under s. 263 of all the aforesaid three assessees.
9.5 It was further highlighted by the learned counsel for the assessee that paper books 262-265 are the copies of letters of Asstt. CIT addressed by the AO of the aforesaid three assessees to AO, Kapurthala enclosing with these letters and copies of documents found and seized during search and survey operations in the case of aforesaid assessees asking the AO, Kapurthala to prepare satisfaction note and make assessments in the case of Shri Jeetu Keshi and Mithlesh Kumar.
9.6 Our attention was further drawn by the learned counsel for the assessee to paper books 266 to 272 which are satisfaction note in the case of Shri Jeetu Keshi and Mithlesh Kumar, recorded by the AO, Kapurthala in which it has been concluded that assessment proceedings for the asst. yrs. 2003-04 to 2008-09 be initiated against Jeetu Keshi and Mithlesh Kumar. Further, our attention was also drawn to paper book 273 to 285 which are notices issued to Jeetu Keshi and Mithlesh Kumar during their assessment proceedings. Vide these notices Jeetu Keshi and Mithlesh Kumar have been asked to explain property transactions which are now being considered under s. 263 in the hands of aforesaid three assessees.
9.7 The learned counsel for the assessee has submitted that to invoke provisions of s. 263 of the Act, order of the AO should be erroneous as well as prejudicial to the interest of Revenue. The twin conditions must coexist. The order passed by the AO after conducting all the enquiries cannot be held to be erroneous and prejudicial to the interest of the Revenue.
9.8 The learned counsel for the assessee further argued on the doctrine or merger, order passed by the AO of Jeetu Keshi and Mithlesh Kumar has merged with the order of the learned CIT(A), which is not amenable under s. 263 of the Act in view of provisions of s. 263(l)(c) of the Act. It was also submitted that it is an established law that action under s. 263 of the Act, which results in double taxation is not permitted under the law.
9.9 Statement of Shri Parminder Singh recorded under s. 132(4) on 4th March, 2008 has been retracted and the same had been subject-matter of appeal for the asst. yr. 2008-09. Copy of order of learned CIT(A) is placed at paper book 108 to 154. As such no action under s. 263 can be taken on the basis of statement of Mr. Parminder Singh in view of provisions of s. 263(l)(c) of the Act.
9.10 The learned counsel for the assessee further submitted that direct purchases and sales made by Shri Jeetu Keshi and Mithlesh Kumar cannot be held as transactions of assessee since the same are evidenced by registered sale deeds. It has been submitted that to invoke the provisions of s. 263 of the Act, the learned CIT has to come to a firm decision that the order of the AO was erroneous and prejudicial to the interest of the Revenue. Here in the present case, same property transactions of Shri Jeetu Keshi and Mithlesh Kumar, provisions of s. 263 of the Act have been invoked in the case of Shri Parminder Singh, M/s Kapurthala Estates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. learned CIT(A) has not come to the conclusion in whose hands transactions are to be taxed and in fact which transactions are really to be taxed. Similar is position about sundry creditors, depositors, advances against plots since learned CIT has not pointed out what errors have been committed. Information asked for during assessment proceedings has been provided and examined by the AO. No decision about the erroneous and prejudicial nature of the order has been taken by the learned CIT. The learned counsel for the assessee relied upon the decisions of various Courts of law stated in his written submission reproduced hereinabove.
9.11 On the basis of facts on record and submissions made by the learned counsel for the assessee and the learned Departmental Representative appearing on behalf of the Revenue, we are of the view to invoke the provisions of s. 263 of the Act, order of the AO should be erroneous as well as prejudicial to the interest of Revenue. The twin conditions should co-exist. We are convinced with the submissions of the learned counsel for the assessee that, order passed after conducting enquiries in all the matters cannot be held to be erroneous or prejudicial to the interest of Revenue because every loss of revenue as a consequence of an order of AO cannot be treated as prejudicial to the interest of Revenue. Our views find support by the case laws relied upon by the learned counsel for the assessee, as stated hereinabove. Accordingly, we are of the view that the AO in the aforesaid case has conducted all the enquiries of the transactions of property carried out by Shri Jeetu Keshi and Mithlesh Kumar by raising queries during assessment proceedings of Shri Parminder Singh by issuing summons under s. 131 of the Act to Shri Jeetu Keshi and Mithlesh Kumar. Not only this AO of the aforesaid assessees wrote letter to the AO, Kapurthala to record satisfaction and frame assessment in the case of Shri Jeetu Keshi and Mithlesh Kumar for all the property transactions carried out by them against which provisions of s. 263 have been invoked in the case of the aforesaid assessees. During assessment proceedings Shri Parminder Singh filed detailed reply to the queries raised and also filed affidavits of Shri Jeetu Keshi and Mithlesh Kumar, wherein they admitted that all the transactions of property are on their own account. Assessments in the case of Jeetu Keshi and Mithlesh Kumar have been completed by the AO, Kapurthala and as such provisions of s. 263 of the Act are not attracted in the case of aforesaid assessees since twin conditions as aforesaid do not exist and AO while framing assessment has conducted all enquiries.
10. We are convinced with the submission of the learned counsel for the assessee that the provisions of s. 263 of the Act are not attracted in the case of the aforesaid assessees since the issues raised under s. 263 of the Act were subject-matter of appeal before the learned CIT(A) in the case of Shri Jeetu Keshi and Mithlesh Kumar and assessment of Shri Parminder Singh was also subject-matter of appeal before the learned CIT(A), Ludhiana for the asst. yr. 2008-09 in view of provisions of s. 263(1)(c) of the Act. The double taxation is not permitted as submitted by the learned counsel for the assessee. In these cases, provisions of s. 263 of the Act have been invoked on the transactions of property which were already taxed in the case of Shri Jeetu Keshi and Mithlesh Kumar. Our views find support from the case laws relied upon by the learned counsel for the assessee.
11. We are convinced with the submission of learned counsel for the assessee that direct sales and purchases made by Shri Jeetu Keshi and Mithlesh Kumar cannot be held as transactions of assessee since the same are evidenced by registered sale deeds. We also find force in further submission of learned counsel for the assessee that to invoke the provisions of s. 263 of the Act, the learned- CIT had to come to a firm decision that the order of the ITO was erroneous as well as prejudicial to the interest of Revenue. In the present case, for the same property transactions of Shri Jeetu Keshi and Mithlesh Kumar provisions of s. 263 have been invoked in the case of Shri Parminder Singh, M/s Kapurthala Esates (P) Ltd. and M/s Kapurthala Promoters & Developers (P) Ltd. The learned CIT has not concluded in whose hands transactions are to be taxed and which transactions are to be taxed. Similar is the position about sundry creditors, depositors, advances against plots. CIT has not pointed out what errors have been committed. Information asked for during assessment proceedings has been provided and examined by the AO. No decision about the erroneous nature of the order has been taken by learned CIT and, therefore, the order passed in all the years in the case of all the assessees mentioned hereinabove are bad in law. Accordingly, all the grounds in all the appeals in the case of all the assessees are allowed.
12. In the result, the appeals in the case of Shri Parminder Singh in ITA Nos. 210 to 214/Asr/2012, in the case of M/s. Kapurthala Estates (P) Ltd. in ITA Nos. 205 to 209/Asr/2012 and in the case of M/s Kapurthala Promoters & Developers (P) Ltd. in ITA Nos. 202 to 204/Asr/2012 are allowed.
USP
*In favour of assessee.
Regards
Prarthana Jalan
__._,_.___
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