ORDER–Failure to make enquiries alleged–Finding of Tribunal that assessing officer had actually made necessary enquiries–Revision vitiated.
HELD :
The finding of the Tribunal was that the ITO had E
actually made an enquiry into the sale of silver utensils.
Therefore, the CIT was not right in his conclusion that the case
of the assessee had been accepted by the ITO without any enquiry.
This finding of fact has not been challenged. The
Tribunal having come to a conclusion that the ITO had made
enquiries about the sale of the silver utensils, the CIT was not
right in coming to the conclusion that the order passed by the
ITO was prejudicial to the interest of the revenue because he had
not made the necessary enquiry in this regard.
APPLICATION :
Also to current assessment years.
Income Tax Act 1961 s.263
Revision under s. 263–JURISDICTION OF COMMISSIONER–Order of assessing officer pursuant to directions under s. 144B–Is order passed under s. 143–Therefore, revisable–Asst. yr. 1979-80 before insertion of Explanation w.e.f. 1-10-1984 for removal of doubts.
HELD :
Notwithstanding the direction given by the IAC
being binding upon the ITO under s. 144B(4),
but ultimately it was the ITO who passed the order under s. 143.
That order at the material time was appealable as an assessment
order under s. 246 to the AAC. It could be rectified under s. 154
by the ITO for correcting any glaring or obvious mistake. The
assessment could be reopened by the ITO under s. 147. In the
relevant accounting year it does not appear that the scheme of
the Act was to treat the assessment order passed by the ITO
pursuant to a direction given by the IAC under s. 144B as anything
but an order under s. 143. Then there is, therefore, no reason why the
CIT could not exercise his revisional jurisdiction in respect of
such an order.
CASE LAW ANALYSIS :
Torson Products Ltd. v. CIT (1988) 173
ITR 611 (AP), CIT v. Vithal Textiles (1989) 175 ITR 629 (MP) and
CIT v. Usharani Bhatia & Ors. (1989) 176 ITR 542 (MP) relied on.
APPLICATION :
Not to current assessment years as s. 144B
stands omitted.
Income Tax Act 1961 s.144B
Income Tax Act 1961 s.263
JUDGMENT
SUHAS CHANDRA SEN, J. :
The following question of law has been referred to this Court by the Tribunal under s. 256(1) of the IT Act, 1961 :
“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of s. 263 of the IT Act could not be invoked by the CIT in respect of that part of the order of the ITO giving effect to the direction given by the IAC under s. 144B of the IT Act ?”
2. The assessment year involved is the asst. yr. 1978-79, for which the relevant period of account is the financial year 1977-78.
This reference arose from an order passed by the CIT under s. 263 of the IT Act.
3. The CIT has stated the following facts in his order passed under s. 263 of the IT Act, 1961.
“The assessment for the asst. yr. 1978-79 was completed under s. 143(3) on 10th September, 1981. In the course of assessment it was given out by the assessee that there was profit to the tune of Rs. 16,237 on the sale of some silver. This was claimed as exempt on the ground that the profit was on the sale of silver utensils which constituted personal effect of the assessee. Perusal of records, however, showed that no enquiry was made in the course of assessment on the following vital points before accepting the contention that the profit was exempt from tax :
(i) There is nothing to show that silver sold constituted items of silver utensils. No details and description of the various articles were furnished. It was not even enquired as to whom the sale was made.
(ii) Presuming that the articles sold constituted silver utensils, no enquiry was made before giving the finding that those alleged silver utensils were articles which were intimately, normally, commonly or ordinarily intended for household use so as to justify them to be included within the expression personal effects as held by the Supreme Court in the case of H. M. Maharaja Nana Hemant Singji vs. CIT (1976) 103 ITR 61 (SC).
(iii) No enquiry was made to show that the assessee was a person of such high status that the alleged silver utensils in question were held by him for domestic use.
(iv) Nothing was shown to the effect that the alleged silver utensils when sold had suffered loss of weight which is a normal incident if the utensils are intimately, normally, commonly or ordinarily used for household purposes.
It is trite law that an order becomes erroneous within the meaning of s. 263 when circumstances would make an enquiry prudent and when such an enquiry has not been made. As in the instant case enquiry on the above point, which ought to have been made, the assessment order appeared to be erroneous and prejudicial to show causes why an order be not passed under s. 263 of the IT Act, 1961 as the circumstances of the case may justify including order/s enhancing fresh assessment or cancelling the said assessment and directing fresh assessment according to law and facts of the case.”
4. The assessee gave his answer to the show cause notice issued by the Commissioner. After hearing, the Commissioner held as follows :
“I have gone through the records and I find that except for showing the sale price of silver the assessee had not furnished any details whatsoever. There was absolutely nothing to show that the silver sold constituted items of silver utensils. No details and description were furnished and it was not even disclosed as to whom the said sale was made. Enquiries mentioned in cls. (ii), (iii) and (iv) of para 1 above, which ought to have been made before enabling the ITO to come to a proper conclusion of facts and in law, were not made and there was no evidence that the ITO has applied his mind to those vital issues. The assessment order is absolutely devoid of any discussion on this point and, therefore, the assessment becomes erroneous within the meaning of s. 263.”
The Commissioner also dealt with two other points raised by the assessee at the hearing. The first point was relating to the jurisdiction to revise and assessment order passed by the ITO pursuant to the direction given by the IAC under s. 144B of the IT Act. On this point the Commissioner observed as follows :
“…… neither the ITO nor the IAC applied their minds on the various aspects of the case and did not make enquiry on vital points as indicated above. The order passed in this case is an order made by the ITO and not by the IAC. Even if it is taken for assessment to be an order of the IAC, proceedings can be initiated under s. 263 in view of the 125A (4) of the IT Act, 1961. ?”
5. The next point taken before the Commissioner was that IAC gave the direction under s. 144B of the Act, relying upon on order passed by the Tribunal in the case of the assessee for the preceding assessment year in which the capital gain on the sale of silver utensils was held not be taxable. The Commissioner, however, held as follows :
“The basic point is that this examination has not been done for this year and, therefore, s. 263 is attracted.”
The Commissioner observed that in this case it was absolutely essential to have the facts examined before deciding whether the profit on sale of silver was exempt from tax or not.
6. On appeal, the Tribunal held as follows :
“…… it is seen that the ITO completed the assessment on the point after considering and following the directions given by the IAC. This very same point was sought to be revised by the CIT under s. 263 on the ground that the order of the ITO was erroneous and both the authorities below have not applied their mind. But the Special Bench decision (supra) has dealt with this very aspect of the matter to the effect that 263 will not apply to such part of the order of the ITO giving effect to the direction of the IAC. On this point alone we are of opinion that the order of the CIT under s. 263 in the instant case cannot be sustained.”
The Tribunal further observed as follows :
“Even on merits, it is seen that the ITO noted that as in the past, the assessee claimed exemption. This indicates that the ITO looked into the facts of the case of the earlier year as well as of the present year before taxing the capital gains which the IAC instructed otherwise after taking into account the finding of facts by the Tribunal for the earlier year and the direction thereon, it appears to us that both the authorities below have applied their minds to the facts of the case. The CIT has referred to the decision in the case of Gee Vee Enterprises (supra) but the facts of the case there were different at the ITO has made assessment without making an enquiry at all. Therefore, it was held that s. 263 was properly invoked …….”
7. The first question is whether the Commissioner could lawfully pass an order under s. 263 in a case where the assessment order was passed by the ITO conformably with the direction of the IAC given under s. 144B. On principle we fail to see why the Commissioner could not pass such an order. Sec. 263 as it stood at the material time enabled the Commissioner to pass an order revising any order passed by the ITO which was considered by the Commissioner to be erroneous in so far as it was prejudicial to the interest of the Revenue. Mr. Pal has argued that the order under s. 143 was passed by the ITO pursuant to the direction given by the IAC under s. 144B. The direction given by the IAC was binding upon the ITO under the provisions of s. 144B(4) of the Act. That may be so. But ultimately it was the ITO who passed the order under s. 143. That order at the material time was appealable as an assessment order under s. 246 to the AAC. It could be rectified under s. 154 by the ITO for correcting any glaring or obvious mistake. The assessment could be reopened by the ITO under s. 147 of the IT Act. In the relevant accounting year it does not appear that the scheme of the Act was to treat the assessment order passed by the ITO pursuant to a direction given by the IAC under s. 144B as anything but an order under s. 143 which was amenable to various provisions relating to appeal, rectification and reassessment. There is no reason why the CIT could not revise such an order.
8. Mr. Pal has strongly relied on the amendment that was made to s. 263 of the Act and explanation that was inserted. He has drawn our attention to the amendment to s. 264 by which the CIT(A) was empowered to hear appeals in a case where an assessment order was passed under s. 144B of the IT Act. But, in our view, the amendment of s. 263 was clarificatory. Clause 47 of Taxation Laws (Amendment) Bill, 1984 makes the position quite clear. It provides :
“Sub-cl. (a) seeks to insert an Explanation to sub-s. (1) of s. 263.
Under the existing provisions, the Commissioner is empowered to revise any order passed by the ITO under the IT laws if he considers that such order is erroneous in so far as it is prejudicial to the interests of the Revenue. The Explanation speaks to clarify that, for the purposes of this section, an order of assessment passed by the ITO on the basis of directions issued by the IAC under s. 144A or s. 144B or an order passed by the IAC in exercise of the powers or in performance of the functions of an ITO conferred on or assigned to him under cl. (a) of sub-s. (1) of s. 125A shall be regarded as an order passed by the ITO.”
Therefore, the legislative intent as expressed in the Notes on Clauses to the Taxation Laws (Amendment) Bill, 1984 was that the Explanation was clarificatory. Mr. Pal has tried to counter this by saying that the various provisions in the Taxation Laws (Amendment) Bill, 1984 and also in the Finance Act were introduced on different dates. The amended s. 263 was made prospective w.e.f. 1st October, 1984. Therefore, the intention of the legislature was that the Commissioners power to revise the order of the ITO would stand enlarged w.e.f. 1st October, 1984 by virtue of the Explanation.
9. We are unable to uphold this contention because the language of s. 263, as it stood at the material time, permitted the CIT to revise any order passed by the ITO under s. 143. We have already referred to the Notes on Clauses which clearly state that the proposed amendment was clarificatory. Moreover, the Explanation which was added to s. 263 w.e.f. 1st October, 1984 starts with the phrase “for the removal of doubts”. Therefore, the intention of the Legislature was not to confer a new revisional jurisdiction upon the Commissioner in respect of assessment orders passed pursuant to directions given by the IAC under s. 144B. It is not necessary to discuss this point any further because the point is not res integra. There are three judgments – one of the Andhra Pradesh High Court and the two of the Madhya Pradesh High Court which have dealt with this issue.
10. The first judgment is in the case of Torson Products Ltd. vs. CIT (1988) 173 ITR 611 (AP) in which the Andhra Pradesh High Court held that the entire purpose of referring the case under s. 144B to the IAC was only to enable the ITO to make the proper assessment in accordance with the directions of the IAC. That did not have the effect of converting the order passed by the ITO into an order made by the IAC. The order continued to be the one passed by the ITO. Remedy by was of appeal was provided by the Act against such order treating them as an order passed by the ITO. All other consequences under the Act which were associated with the ITO passing the order himself were also associated with such order passed by the ITO under instructions and directions of the IAC. Therefore, the Commissioner had jurisdiction to revise the order passed by the ITO under s. 144B in accordance with the directions of the IAC.
11. The second decision is of the Madhya Pradesh High Court in the case of CIT vs. Vithal Textiles (1989) 175 ITR 629 (MP), Madhya Pradesh High Court went into the controversy raised in the instant reference at length and held that Explanation (a) to s. 263(1) of the IT Act, 1961 made it clear that it was enacted to remove doubts. Though the Explanation came into force from 1st October, 1984, the amending Act being declaratory, must be held to be retrospective. A perusal of s. 263 would show that the CIT had jurisdiction under s. 263, to revise an order if it was passed by the ITO and if the Commissioner considered the order to be erroneous and prejudicial to the interests of Revenue. An assessment order passed by the ITO after giving effect to the directions given by the IAC under s. 144B was still an order passed by the ITO under s. 143(3) of the Act and the Explanation to s. 263(1) also specifically declared that for the purposes of sub-s. (1) of s. 263, an order passed by the ITO would include an order of assessment made on the basis of directions issued by the IAC under s. 144B. It was, therefore, held that the Commissioner could revise an order of assessment passed by ITO for the year 1978-79 in accordance with the directions issued to him by the IAC under s. 144B.
12. Madhya Pradesh High Court once again examined this controversy in the case of CIT vs. Usharani Bhatia & Ors. (1989) 176 ITR 542 (MP) and reiterated their decision in the case of CIT vs. Vithal Textiles (supra).
13. Mr. Pal has, however, argued that there is another aspect of the case. The Commissioner had directed certain enquiries to be made in connection with the sale of certain silver utensils. The Commissioner was of the view that failure to make such enquiries had made the assessment order erroneous and prejudicial to the interests of the Revenue.
14. There can be no doubt that if the ITO accepted the assessees case without any enquiry about the sale of silver utensils, the CIT was entitled to come to the conclusion that the assessment order was erroneous and prejudicial to the interest of the Revenue. Even if similar utensils were sold in the earlier years and some enquiries were made in the earlier years, that will not be of any relevance in the current assessment year because every sale has to be examined separately and independently by the ITO. But unfortunately, for the Revenue in this case, the finding of the Tribunal is that “…… but in the present case before us, the ITO appears to have made enquiry from the assessee as can be seen from his letter dt. 29th December, 1980 which is a page 23 of the Paper Book placed us to which the assessee sent a reply, which is at page 21.
Having regard to the facts of the case, we are of opinion that even on merits the provisions of s. 263 cannot be invoked on the facts of the present case before us.”
15. This finding has not been challenged by the Commissioner as perverse in this case. There is no allegation of any misdirection of law. In other words, the finding of the Tribunal was that the ITO had actually made an enquiry into the sale of silver utensils. Therefore, the Commissioner was not right in his conclusion that the case of the assessee had been accepted by the ITO without any enquiry. Since this finding of fact of the Tribunal has not been challenged, it will be academic to give any answer to the question of law posed by the Revenue. The Tribunal might have wrongly decided the question of the Commissioners jurisdiction under s. 263 of the IT Act and the nature of the assessment order made by the ITO pursuant to a directions given by the IAC. But the Tribunal has come to a conclusion that the ITO had made enquiries about the sale of the silver utensils. Therefore, the Commissioner was not right in coming to the conclusion that the order passed by the ITO was prejudicial to the interest of the Revenue because he had not made the necessary enquiry in this regard. So long as this finding of fact stands, it has to be held that the Commissioners decision to revise the order of the ITO under s. 263 was erroneous.
16. In that view of the matter, even though we are of the view that the Tribunal had wrongly decided the question of law as to the jurisdiction of the CIT raised before it, the order of the Tribunal cannot be said to be erroneous because of the finding of fact made by it on the merits of the case.
17. Under these circumstances, any answer given to the question raised would be academic and we, therefore, decline to answer the question.
There will be no order as to costs.
BHAGABATI PRASAD BANERJEE, J. :
I agree.