2015 (12) TMI 1674 - AT - Income Tax

Reopening of assessment - audit objection raised by Income Tax Revenue Audit Officer (ITRAO) relied upon - Held that - The return of income was filed on 3.10.2003 showing income before set off of brought forward unabsorbed depreciation allowance at ₹ 6,12,417/- and after set off of brought forward unabsorbed depreciation allowance at Rs. Nil, the tax was levied. Thereafter an objection was raised by the ITRAO on 11.2.2005 which was replied by the Assessing Officer on 18.10.2005 and thereafter notice u/s. 148 was issued on 19.1.2007 i.e. just before expiry of four years. Which shows that callous act on the part of the Assessing Officer to issue notice just before the expiry of the four years, that too, when the entire material was before the Assessing Officer and all those facts were disclosed before the Assessing Officer i.e. on 3.10.2003 itself and there is no explanation on the part of the Assessing Officer as to why it take approximately four years to issue notice u/s. 148 of the Act and more particularly when there was no new tangible material in formation of belief. We have found upon the entirety of the facts in the present case that there was a gross omission or lapse on the part of the Assessing Officer who was having material before him since 3.10.2003 but just before the expiry of four years, all of sudden notice u/s. 148 regarding reopening of assessment has been issued without any new tangible material.- Decided in favour of assessee.

Summary

Issues:
1. Validity of assessment order under section 143(3) r.w.s. 148 of the Income Tax Act, 1961.
2. Disallowance of expenses claimed by the assessee.
3. Reopening of assessment u/s. 147/148 based on audit objection.

Issue 1: Validity of assessment order under section 143(3) r.w.s. 148:
The appeal challenged the assessment order for the assessment year 2003-04, contending that the orders passed by the lower authorities were bad in law and facts. The appellant argued that the assessment order was ab-initio void as no notice under section 143(2) of the Income Tax Act, 1961 was issued before completion of the assessment under section 143(3) r.w.s. 148. The appellant further claimed that the notice under section 148 was issued without tangible material suggesting income escapement. The appellant emphasized that there was no new material between the filing of the return and the issuance of the notice, indicating a change of opinion rather than a valid reason for reopening the assessment. The Tribunal held that the reopening of assessment without new tangible material just before the four-year period was a lapse on the part of the Assessing Officer, rendering the reopening bad in law. Reference was made to legal precedents emphasizing the necessity of tangible material for reopening assessments. The Tribunal concluded that the assessment reopening was unjustified and accepted the grounds raised by the assessee.

Issue 2: Disallowance of expenses claimed by the assessee:
The appellant contested the disallowance of Rs. 570,086 out of total expenses claimed at Rs. 6,23,373, alleging that the reasons for disallowance were arbitrary and incorrect. The appellant argued that the disallowance was untenable in law based on the facts of the case and legal provisions. The Tribunal, however, did not delve into this issue as the focus was primarily on the validity of the assessment reopening. Hence, no specific decision was provided regarding the disallowance of expenses.

Issue 3: Reopening of assessment based on audit objection:
The appellant challenged the reopening of assessment under sections 147/148, asserting that the notice was issued in response to an audit objection without any tangible material indicating income escapement. The appellant highlighted the absence of a notice under section 143(2) before issuing the notice under section 148, contending that the Assessing Officer lacked the authority to resort to section 148 without following due process. The Departmental Representative defended the lower authorities' orders, stating that the Assessing Officer had valid reasons for reopening the assessment. The Tribunal analyzed the legal requirements for reopening assessments, emphasizing the need for tangible material to establish income escapement. Citing legal principles and precedents, the Tribunal concluded that the reopening of assessment lacked a valid basis and was therefore deemed bad in law. Consequently, the Tribunal allowed the appeal filed by the assessee, setting aside the order of the Assessing Officer and the CIT(A) regarding the reopening of assessment.

In conclusion, the Tribunal held that the reopening of assessment in the case was unjustified as it lacked the necessary tangible material to support income escapement. The Tribunal emphasized the importance of adhering to legal requirements and precedents when reopening assessments, ultimately allowing the appeal filed by the assessee on this basis.