2018 (12) TMI 1140 - AT - Income Tax

Reopening of assessment - reopening on basis of report of the Investigation Wing - non independent application of mind - Held that - In the instant case, AO has reopened the assessment merely on the basis of the report of the Investigation Wing without independent application of his mind as he is not aware as to whether the assessment is proposed to be made for the first time since the records are not traceable and since the additional CIT in a mechanical manner has given approval, therefore, we are of the considered opinion that the assumption of jurisdiction u/s 147/148 in the instant case is not as per law. Quash the reassessment proceedings initiated by the AO merely on the basis of report of the Investigation Wing and due to non-application of mind. The legal ground raised by the assessee is accordingly, allowed. Since the assessee succeeds on this legal ground, therefore, the grounds relating to the merit of the case become academic in nature and, therefore, are not being adjudicated. - Decided in favour of assessee

Issues Involved:
1. Validity of the reassessment proceedings under Section 147/148.
2. Proper service of notice under Section 148.
3. Application of mind by the Assessing Officer (AO) and Addl. CIT.
4. Addition of ?58.50 lakhs under Section 68 as unexplained cash credit.

Detailed Analysis:

1. Validity of the Reassessment Proceedings under Section 147/148:
The reassessment proceedings were initiated based on information from the Investigation Wing indicating that the assessee had received accommodation entries amounting to ?63.50 lakhs. The Tribunal found that the AO had not independently verified the assessment records, which were stated to be "not traceable." The Tribunal emphasized that the AO must apply his mind independently before initiating reassessment proceedings. The Tribunal relied on the decision of the Hon'ble Delhi High Court in the case of G & G Pharma India Ltd., which held that reopening based solely on the Investigation Wing's report without the AO's independent application of mind is invalid. Consequently, the Tribunal quashed the reassessment proceedings.

2. Proper Service of Notice under Section 148:
The assessee contended that the notice under Section 148 was issued to an incomplete address and was never properly served. The Tribunal noted that the correct and complete address was available on the Department's records, as evidenced by other communications. The Tribunal agreed with the assessee's argument that proper service of notice is a jurisdictional requirement and non-service of proper notice within the limitation period cannot be cured by Section 292B of the IT Act. The Tribunal found that the reassessment proceedings were invalid due to improper service of notice.

3. Application of Mind by the Assessing Officer (AO) and Addl. CIT:
The Tribunal observed that the reasons recorded by the AO for reopening the assessment were based on the Investigation Wing's report without any independent verification or application of mind. The AO's form for recording reasons mentioned that the assessment records were "not traceable." The Tribunal also noted that the Addl. CIT approved the reopening in a mechanical manner without proper application of mind. The Tribunal held that such mechanical approval and lack of independent application of mind by the AO rendered the reassessment proceedings invalid.

4. Addition of ?58.50 Lakhs under Section 68 as Unexplained Cash Credit:
The AO added ?58.50 lakhs to the assessee's income under Section 68, treating it as unexplained cash credit. The assessee provided confirmations, copies of accounts, and other documents to support the genuineness of the transactions. However, the AO made the addition due to the non-production of the creditor parties for examination. Since the Tribunal quashed the reassessment proceedings on legal grounds, the issue of addition under Section 68 became academic and was not adjudicated.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, quashing the reassessment proceedings initiated by the AO due to improper service of notice, lack of independent application of mind, and mechanical approval by the Addl. CIT. The legal grounds raised by the assessee were upheld, rendering the issues on merit academic. The decision was pronounced in the open court on 19.12.2018.

← Previous Next →