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Judgment
The Court: Assessee is a corporate body engaged in computer training and software development. During the relevant previous year the assessee
made project exports to certain parties. Profit from such project exports was entitled to exemption under section 10A of the Income Tax Act, 1961.
The assessee filed return of its income showing total income of Rs.51,51,190/- after claiming, inter alia, deduction of Rs.3,52,52,076/- under section
10A of the Act. The said claim for deduction was supported by auditor’s certificate in Form 54F and was duly accepted as per intimation issued
under section 143(1). Based on a statement made by the auditor, that till the date of signing the report certain amounts against project exports remain
unrealized, the Assessing Officer (AO) issued notice under section 148 of the Act.
During the course of proceeding under section 147, assessee filed supplementary auditor’s report claiming profit from software export at the
reduced figure of Rs.1,56,34,346/- because net profit as shown in profit and loss account stood reduced due to sales return against project exports, by
Rs.1,96,17,730/. The AO without accepting the claim of sales return took the net profit at the original figure for computation but reduced exemption
under section 10A to the extent of Rs.1,54,51,000/-, to reassess the total income at Rs.2,49,52,270/-. On appeal by the assessee, CIT(A) found it
difficult to sustain the order of AO and therefore directed computation of net profit by the AO to be reconsidered in the light of observations made in
the appellate order. Revenue preferred an appeal to the Tribunal which confirmed the order of CIT(A).
Revenue continuing to be aggrieved seeks to prefer this appeal against order dated 7th May, 2015 passed by the Income Tax Appellate Tribunal
“A†Bench, Kolkata in ITA no.1055(KOL)/2010 pertaining to assessment year 2001/02. Of the questions suggested, Mr. Kundalia, learned
advocate appearing for Revenue, pressed question (a) for admission of appeal. The said suggested question is as under:
“a) Whether on the facts and circumstances of the case the Learned Tribunal is correct in accepting the supplementary auditor’s report dated
15th July, 2004 and amended Form 54F, which were filed by the assessee at the reassessment proceeding, contravening the judgment of the Apex
Court in the case of CIT-Vs.- Sun Engineering Works Pvt. Ltd. reported in (1992) 198 ITR 297 wherein it has been held by the Apex Court that (i)
assessment under section 147 is for the benefit of the Revenue and not for the assessee; and (ii) in reassessment proceedings, it is not open to an
assessee to seek review of the concluded item, unconnected with escapement of income, for the purpose of computation of the escaped income?â€
Mr. Kundalia, relied on Sun Engineering (supra) to submit that the jurisdiction of the AO was confined to income which had escaped assessment as
declared by the Supreme Court. The assessee claimed reduced profit in reassessment proceeding under section 147. Claim of reduced profit had no
relation to assessment of escaped income. He relied on the following portions in the judgment as are extracted below:
“……The assessee cannot claim recomputation of the income or redoing of an assessment and be allowed a claim which he either failed to make
or which was otherwise rejected at the time of original assessment which has since acquired finality. Of course, in the reassessment proceedings, it is
open to an assessee to show that the income alleged to have escaped assessment has in truth and in fact not escaped assessment but that the same
had been shown under some inappropriate head in the original return, but to read the judgment in V. Jaganmohan Rao’s case [1970] 75 ITR 373
(SC), as laying down that reassessment wipes out the original assessment and that reassessment is not only confined to “escaped assessment†or
“ underassessment†but to the entire assessment for the year and starts the assessment proceedings de novo giving the right to an assessee to
reagitate matters which he had lost during the original assessment proceedings, which had acquired finality, is not only erroneous but also against the
phraseology of section 147 of the Act and the object of reassessment proceedings……… ……………
Although section 147 is part of a taxing statute, it imposes no charge on the subject but deals merely with the machinery of assessment and in
interpreting a provision of that kind, the rule is that that construction should be preferred which makes the machinery workable. Since the proceedings
under section 147 of the Act are for the benefit of the Revenue and not an assessee and are aimed at garnering the “escaped income†of an
assessee, the same cannot be allowed to be converted as “revisional†or “review†proceedings at the instance of the assessee, thereby
making the machinery unworkable.â€
He submitted, Sun Engineering(supra) was applied by a coordinate Bench of this Court in the case of CIT v. Keshoram Industries Ltd. reported in
(2004) 271 ITR 353. Mr. Khan, learned advocate appearing on behalf of the assessee submitted, Sun Engineering(supra)is not applicable to case of
the assessee. Referring to the computation of income in the assessment made under sections 254/143(3)/147, he demonstrated that the purported
escaped income was arrived at by reducing the deduction under section 10A, by the amount of sales return, while keeping the net profit at the amount
shown in the original return. It was his submission that thereby the AO had approbated and reprobated. According to him, in reassessment review is
not possible. This was the declaration of law by the Supreme Court in Sun Engineering (supra) as well as in CIT v. Kelvinator of India Ltd. reported in
(2010) 2 SCC 723. He relied on paragraph 6 in Kelvinator (supra) which is reproduced below:
“6. We must also keep in mind the conceptual difference between power to review and power to reassess. The assessing officer has no power to
review; he has the power to reassess. But reassessment had to be based on fulfillment of certain precondition and if the concept of “change of
opinion†is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place.â€
Mr. Khan submitted in the alternative that in any event the assessment in the proceeding under section 147 was in fact the first assessment. His
client’s case of reduced net profit was neither by way of reagitation nor review. Intimation is not assessment as had been held by Supreme Court
in ACIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. reported in (2008) 14 SCC 208. He relied on paragraphs 14 to 16 as are reproduced below:
“14.It is to be noted that the expressions “intimation†and “assessment order†have been used at different places. The contextual
difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes
“the computation of incomeâ€, sometimes “the determination of the amount of tax payable†and sometimes “the whole procedure laid down
in the Act for imposing liability upon the taxpayerâ€.
15.In the scheme of things, as noted above, the intimation under section 143(1) (a) cannot be treated to be an order of assessment. The distinction is
also well brought out by the statutory provisions as they stood at different points of time. Under section 143(1)(a) as it stood prior to 1-4-1989, the
assessing officer had to pass an assessment order if he decided to accept the return, but under the amended provisions, the requirement of passing of
an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct
Taxes spell out the intent of the legislature i.e. to minimize the departmental work to scrutinize each and every return and to concentrate on selective
scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain, J.) in Apogee International Ltd. v. Union of India.
It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from 1-6-1999, except as provided in the
provision itself, the acknowledgement of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the
assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any assessing officer, but mostly by ministerial staff.
Can it be said that any “assessment†is done by them? The reply is an emphatic “noâ€. The intimation under section 143(1)(a) was deemed to
be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such
application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision.
Therefore, there being no assessment under section 143(1(a), the question of change of opinion, as contended, does not arise.â€
The facts have been set out above. An additional fact, we have ascertained from the parties, is that the sales return was claimed on two credit notes
issued by the assessee on 29th October,2003. The assessment order made under sections 254/143(3)/ 147 is dated 28th December, 2006. AO issued
notice under section 148 based on a statement made by the auditor that till the date of signing of the report certain amounts against project exports
remain unrealized. Such unrealized amounts could only mean unrealized amounts of project exports made in the previous year relevant to the
assessment year. As a consequence part of the profit booked stood unrealized. Thus far there is no problem but on commencement of proceeding
under section 147 the assessee, having suffered sales return in the meantime, accordingly filed supplementary auditor’s report claiming profit from
software export at the reduced figure.
The AO, taking into account the reduced profit from project exports caused corresponding reduction in exemption of profit under section 10A. This in
our opinion could not be done in isolation, detatched from the reduction in sales figure on account of sales return. The assessee wanted corresponding
reduction in the total income for ascertaining escapement of income. This the AO refused to do with the result of assessment of escaped income. The
contention of the assessee was rejected by citing Sun Engineering (supra)to say that would amount to review which has been declared to be not
possible as would make the machinery of assessment under section 147, unworkable.
By Sun Engineering (supra) Supreme Court declared that assessee cannot seek, inter alia, review in reassessment proceeding under section 147. In
Kelvinator (supra) Supreme Court said AO can reassess but not review. The higher total income of Rs.2,49,52,270/- found by the AO was assessed
on the basis of reduced profit resulting from sales return. Sales return was the cause, as per the assessee, the effect of which was reduction in the
profit figure qualifying for deduction under the provisions of section 10A of the Act. The exercise that resulted in the intimation, done on the basis of
material and evidence then available, cannot be said to have been done in a manner which allowed some income of the assessee to have escaped
assessment to tax. As such there is nothing wrong with the directions given by the said appellate authority. In the premises we do not find any
substantial question of law is involved in the case. The appeal and application are accordingly dismissed.