Philips India Limited, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri N. K. Saini, AM &Shri Mahavir Singh, JM ]

I.T.A No. 892/Kol/2014 Assessment Year: 2007-08 Philips India Ltd. (Earlier known as Vs. Commissioner of Income-tax, Philips Electronics India Ltd.) Kolkata-IV, Kolkata (Appellant) (Respondent)

Date of hearing: 19.01.2015 Date of pronouncement: 23.01.2015

For the Appellant: Shri D. S. Damle, FCA For the Respondent: Shri Sanjay, ACIT

ORDER

Per Shri N. K. Saini, AM :

This is an appeal by assessee against the order dated 17.03.2014 of Ld. CIT-IV, Kolkata. Following grounds have been raised in this appeal:

1. For that on the facts and in the circumstances of the case and in law, the Commissioner of Income (Ld. CIT) grossly erred in law and on facts in passing the order under Section 263 for the Assessment Year 2007-08 even though the assessment order u/s 143(3)/144C dated 07.04.2011 by the Assessing Officer 2009-10 was neither erroneous nor prejudicial to the interests of the Revenue. "

2. For that on the facts and in the circumstances of the case and in law, the Ld. CIT grossly erred in setting aside the issue of allowability of lease rentals to the file of the Assessing Officer for conducting examination of the facts without in any manner proving that the assessment order dated 07.04.2011 suffered from any specific error which caused prejudice to the interests of the Revenue.

3. For that on the facts and in the circumstances of the case and in law, when the Ld. CIT passed the order u/s 263 he ought to have proved that the assessment order dated 07.04.2011 suffered from specific error which caused prejudice to the interests of the Revenue and in absence of any such finding, the LD. CIT's order suffered from infirmity and therefore liable to be set aside and/or cancelled.

4. For that on the facts and in the circumstances of the case and in law, the Assessing Officer in the notice U/S 142(1) having specifically raised and thereafter examined the issue of allowability of lease rents paid in respect of leased motor cars the Ld. CIT was unjustified in considering the assessment order dated 07.04.2011 to be erroneous merely because on the same set of facts he entertained a different opinion/view.

5. For that on the facts and in the circumstances of the case and in law, the dispute Resolution Panel in assessee's own case for the immediate preceding year having held the lease rents paid on leased cars as revenue expenditure and the said decision of the DRP having become final, the Ld. CIT could not hold the assessment order for 2 ITA No.892/K/2014 Philips India Ltd. 2007-08

AY 2007-08 to be erroneous merely because he entertained an opinion which was contrary to the decision of the DRP.

6. For that on the facts and in the circumstances of the case and in law, the Assessing Officer (AO) after due examination of the relevant facts having already followed one of the course permissible in law, the Ld. CIT was unjustified in setting aside the assessment on the issue of allowability of lease rents and directing the AO to re- adjudicate the same issue after re- examination of the facts.

7. For that on the facts and in the circumstances of the case and in law, the order passed by the Ld. CIT u/s 263 be cancelled and the order of the AO u/s 143(3)/144C be restored."

2. From the above grounds, it is gathered that only grievance of the assessee in this appeal relates to the action taken by the Ld. CIT u/s. 263 of the Income Tax Act, 1961 (hereinafter referred to as the "Act" in short).

3. Facts of the case in brief are that the assessee filed its return of income on 28.10.2007 showing total income at Rs.308,72,50,100/-. The assessment, however, was framed u/s. 143(3) read with section 144(13) of the Act by the AO on 07.04.2011 determining the total income at Rs.335,32,97,890/-. Thereafter, the Ld. CIT examined the assessment record and observed that the assessee had claimed a deduction of Rs.4,01,65,333/- on account of lease rental paid for motor car taken on finance lease and the same was allowed in the assessment. He was of the view that the lease rentals paid for motor cars were required to be treated as capital expenditure. He, therefore, treated the assessment order as erroneous and prejudicial to the interest of the revenue. Accordingly, he issued a notice u/s. 263 of the act to the assessee. In response to the said notice, the assessee furnished a written reply stating therein that the rental charges paid for motor cars were the regular expenditure of the assessee and it was to be treated as revenue expenditure. The Ld. CIT, however, did not find merit in the submissions of the assessee and set aside the assessment framed by AO and directed him to decide the same afresh after making proper examination of the lease documents. Now assessee is in appeal before us.

4. The Ld. Counsel for the assessee submitted that the assessment order passed by AO was neither erroneous nor prejudicial to the interest of revenue because it was passed after issuing notice dated 12.08.2010 u/s. 142(1) of the Act along with a 3 ITA No.892/K/2014 Philips India Ltd. 2007-08

questionnaire, requiring the assessee to explain the information/documents mentioned therein. He referred to page no. 11 of the assessee's paper book, wherein vide question no. (g), the AO asked about the lease rental for vehicles debited to P&L Account. He further stated that the assessee vide reply dated 11.11.2010 explained to the AO all the details relating to the said question, a reference was made to page no. 19 of assessee's paper book. He further stated that for the AY 2003-04, a similar disallowance was made by AO against which the assessee went in appeal before Ld. CIT(A), who vide Paras 9.1 to 9.4 of the order dated 31.03.2006 deleted the addition. A reference was made to page no. 51 and 52 of the assessee's paper book. It was further stated that a similar disallowance was also deleted for AY 2004-05 by the Ld. CIT(A) vide order dated 30.06.2009, a reference was made to page no. 71 of assessee's paper book. It was contended that for AYs 2005-06 and 2006-07, the similar issue was before the DRP and the stand taken by the assessee has been accepted. It was also stated that the DRP, Kolkata vide Para 22 of the order dated 17.06.2010 directed the AO to delete the addition made in the draft order on account of lease rent paid, a reference was made to page no. 132 of assessee's paper book. It was accordingly, submitted that the Ld. CIT was not justified in setting aside the assessment order framed by AO particularly when the view taken on the lease rental by the AO was in consonance with the view taken in earlier years and the same was a possible view. Reliance was placed on the following case laws:

(i) CIT Vs. Max India Ltd. (2007) 295 ITR 282 (SC), (ii) ITO Vs. DG Housing Projects Ltd. (2012) 343 ITR 329 (Del.) & (iii) DIT Vs. Jyoti Foundation (2013) 357 ITR 388 (Del.)

5. In his rival submissions the Ld. Sr, DR supported the order of Ld. CIT and reiterated the observations made in the said order.

6. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, the whole controversy revolves around an issue which relates to the revisional power conferred on the Ld. CIT vide section 263 of the Act.

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7. It is trite that an order can be revised only and only if twin conditions of 'error in the order' and 'prejudice caused to the Revenue co-exist. The subject of revision under section 263 of the Act has been vastly examined and analyzed by various Courts including the Hon'ble Apex Court. The revisional power conferred on the Ld. CIT under section 263 of the Act is of vide amplitude. It enables the Ld. CIT to call for and examine the records of any proceeding under the Act. It also empowers the Ld. CIT to make or cause to be made such an enquiry as he deems necessary in order to find out if any order passed by Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The only limitation on his powers is that he must have some material(s) which would enable him to form a prima facie opinion that the order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the Revenue. Once he comes to the above conclusion on the basis of the 'material' that the order of the Assessing Officer is erroneous and also prejudicial to the interests of the Revenue, the Ld.

CIT is empowered to pass an order as the circumstances of the case may warrant. He may pass an order enhancing the assessment or he may modify the assessment. He is also empowered to cancel the assessment and direct to frame a fresh assessment. He is empowered to take recourse to any of the three courses indicated in section 263 of the Act. So, it is clear that the Ld. CIT does not have unfettered and unchequered discretion to revise an order. He is required to exercise revisional power within the bounds of the law and has to satisfy the need of fairness in administrative action and fair play with due respect to the principle of 'audi alteram partem' as envisaged in the Constitution of India as well as in section 263 of the Act. An order can be treated as 'erroneous' if it was passed in utter ignorance or in violation of any law; or passed without taking into consideration all the relevant facts or by taking into consideration irrelevant facts. The 'prejudice' that is contemplated under section 263 of the Act is the prejudice to the Income Tax administration as a whole. The revision has to be done for the purpose of setting right distortions and prejudices caused to the Revenue in the above context.

The 5 ITA No.892/K/2014 Philips India Ltd. 2007-08

fundamental principles which emerge from the the several cases regarding the powers of the Ld. CIT under section 263 of the Act may be summarized as under:

(i) The Ld. CIT must record satisfaction that the order of the Assessing Officer is erroneous and prejudicial to the interests of the revenue. Both the conditions must be fulfilled.

(ii) Section 263 cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer and it is only when an order is erroneous, that the section will be attracted.

(iii) An incorrect assumption of facts or an incorrect application of law will suffice for the requirement or order being erroneous.

(iv) If the order is passed without application of mind, such order will fall under the category of erroneous order.

(v) Every loss of revenue cannot be treated as prejudicial to the interest of the revenue and if the Assessing Officer has adopted one of the courses permissible under law or where two views are possible and the Assessing Officer has taken one view for which the Ld. CIT does not agree, it cannot be treated as an erroneous order, unless the view taken by the Assessing Officer is unsustainable under the law.

(vi) If while making the assessment, the Assessing Officer examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income, the Ld. CIT, while exercising his power under section 263 of the Act, is not permitted to substitute his estimate of income in place of the income determined by the Assessing Officer.

(vii) The Assessing Officer is required to exercise quasi-judicial power vested in him and if he exercise such power in accordance with law and arrives at a conclusion, such conclusion cannot be termed to be erroneous simply because the Ld. CIT does not feel satisfied with the conclusion.

(viii) The Ld. CIT, before exercising his jurisdiction under section 263 of the Act must have material on record to arrive at a satisfaction.

(ix) If the Assessing Officer has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation be a letter in writing and the Assessing Officer allowed the claim on being satisfied with the explanation of the assessee, the decision of the Assessing officer cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard."

8. Reverting to the facts of the present case, it is noticed that the AO before allowing the claim of the assessee on account of lease rental issued a questionnaire 6 ITA No.892/K/2014 Philips India Ltd. 2007-08

along with notice u/s. 142(1) of the Act. The assessee furnished the requisite details and evidences to the AO, who on being satisfied allowed the claim of the assessee. It is also noticed that for AY 2006-07 the similar issue was before the DRP, who also directed the AO to delete the similar disallowance. In the present case, the Ld. CIT(A) on the similar issue for AYs 2004-05 and 2005-06 has deleted the additions made by AO. Therefore, it can be said that the view taken by AO was one of the possible view so it cannot be said that the assessment order passed by him was erroneous or prejudicial to the interest of revenue.

9. On a similar issue the Hon'ble Supreme Court in the case of CIT Vs. Max (India) Ltd. (supra) has held as under:

"The phrase "prejudicial to the interests of the Revenue" in section 263 of the Income-tax Act, 1961, has to be read in conjunction with the expression "erroneous" order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when the Assessing Officer adopts one of the two courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Assessing Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the Revenue, unless the view taken by the Assessing Officer is unsustainable in law."

10. In the present case, as we have already pointed out in the former part of this order that the view taken by the AO was one of the possible view, therefore, the assessment order passed by him for the year under consideration i.e. AY 2007-08 was neither erroneous nor prejudicial to the interest of revenue. Moreover, the Ld. CIT in the impugned order has simply stated that the assessee furnished the written reply. However, he has not discussed the contents of the said reply and also did not bring on record how and in what manner the assessment order passed by AO was erroneous or prejudicial to the interest of revenue, he simply directed the AO to reexamine the issue after calling the lease documents and examining the same, which the AO had already considered and examined while passing the assessment order. We are, therefore, considering the totality of the facts as discussed hereinabove are of the view that the Ld. CIT was not justified in setting aside the assessment order dated 07.04.2011 passed by AO u/s. 143(3) of the Act read with section 144(13) of the Act.

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Accordingly, the impugned order is set aside and the assessment order dated 07.04.2011 passed by AO is restored.

11. In the result, appeal of assessee is allowed.

12. Order is pronounced in the open court on 23.01.2015.

Sd/- Sd/- (Mahavir Singh) (N. K. Saini) Judicial Member Accountant Member

Dated : 23rd January, 2015

व र ठ निज स चव Jd.(Sr.P.S.)

आदेश क त ल प अ े षतः- Copy of the order forwarded to:

1. अपीलाथ /APPELLANT - Philips India Ltd. (Earlier known as Philips Electronics India Ltd.), 7, Justice Chandra Madhab Road, Kolkata- 700020 2 यथ /Respondent - LD. CIT, Kolkata-IV, Kolkata.

3. आयकर क मशनर (अपील)/ The LD. CIT(A), Kolkata

4. आयकर क मशनर/ LD. CIT Kolkata

5. वभा गय तनीधी / DR, Kolkata Benches, Kolkata स या पत त/True Copy, आदेशानुसार/ By order,

सहायक पंजीकार/Asstt. Registrar.