2016 (8) TMI 1228 - AT - Income Tax

Reopening of assessment - reason to believe - Held that - Proceedings under Sec.147 of the Act contemplates reason to believe on the part of the AO that any income chargeable to tax has escaped assessment for any assessment year . Such satisfaction of the AO cannot be substituted by the CIT(A) in an appellate proceeding arising out of an order of assessment passed pursuant to an order or revision u/s.263 of the Act. In our view the CIT(A) having annulled the order of assessment ought not have given directions to the AO to initiate proceedings u/s.147 by issue of notice u/s.148 of the Act. We therefore quash that part of the order of the CIT(A) wherein the directions to initiate proceedings u/s.147 of the Act by issue of notice u/s.148 of the Act are contained. The appeal of the Assessee accordingly stands allowed.

Issues Involved:
1. Validity of the fresh assessment made pursuant to the revision order under Section 263.
2. Validity of the revision order under Section 263.
3. Merits of the addition made as share application-cum-premium moneys received.
4. Jurisdiction and authority of the CIT(A) in giving directions under Section 150 to reopen the assessment.
5. Service of notice and opportunity to be heard.

Detailed Analysis:

1. Validity of the Fresh Assessment Made Pursuant to the Revision Order Under Section 263:
The Tribunal examined whether the fresh assessment made by the Assessing Officer (AO) pursuant to the revision order under Section 263 was valid. The CIT(A) found that notices for the proceedings under Section 263 and the fresh assessment were not served on the Assessee. The Assessee argued that the AO was aware of the change in address but still issued notices to the old address. The Tribunal agreed with the CIT(A) that the service of notice was not valid as the Assessee had not properly intimated the AO of the change in address as required under Section 139A(5)(d). However, the Tribunal noted that the CIT(A) concluded that the assessment order was vacated due to the non-service of notice, effectively annulling the assessment.

2. Validity of the Revision Order Under Section 263:
The Assessee did not appeal against the revision order under Section 263, and the CIT(A) noted that the Assessee was not contemplating such an appeal. The Tribunal observed that the CIT(A) did not adjudicate on the validity of the revision order under Section 263, as it was not within his jurisdiction to do so in the present appeal.

3. Merits of the Addition Made as Share Application-Cum-Premium Moneys Received:
The CIT(A) did not delve into the merits of the addition of ?2,05,00,000 claimed as share application-cum-premium moneys received, as he directed the AO to consider the matter afresh under Section 150 after giving an opportunity to the Assessee. The Tribunal noted that since the CIT(A) vacated the assessment order, he should not have given directions for initiating proceedings under Section 147 by issuing a notice under Section 148.

4. Jurisdiction and Authority of the CIT(A) in Giving Directions Under Section 150 to Reopen the Assessment:
The Tribunal highlighted that the CIT(A) exceeded his jurisdiction by directing the AO to initiate proceedings under Section 147 by issuing a notice under Section 148. The Tribunal emphasized that the CIT(A) has the power only to confirm, reduce, enhance, or annul the assessment under Section 251(1)(a) and does not have the authority to set aside the assessment and direct a fresh assessment. The Tribunal cited previous cases, including Smt. Uma Goenka Vs. ACIT and Sun Metal Factory (I) Pvt. Ltd. Vs. ACIT, to support this conclusion.

5. Service of Notice and Opportunity to be Heard:
The Tribunal noted that the CIT(A) acknowledged the non-service of notice on the Assessee before concluding the assessment proceedings. The Tribunal agreed that the non-service of notice was a significant issue, as it deprived the Assessee of the opportunity to be heard. The Tribunal concluded that the CIT(A) should have addressed this issue by calling for a remand report from the AO rather than directing fresh proceedings under Section 147.

Conclusion:
The Tribunal quashed the directions given by the CIT(A) to initiate proceedings under Section 147 by issuing a notice under Section 148, as the CIT(A) had no authority to give such directions after annulling the assessment. The appeals of the Assessees were allowed, and the Tribunal emphasized the importance of proper service of notice and the opportunity to be heard in assessment proceedings.

← Previous Next →