2015 (9) TMI 1603 - AT - Income Tax

Reopening of assessment - addition of long term capital gain - notice issues prior to recording of reasons - Held that - AO issued the notice u/s 148 dated 19.09.2011 prior to recording of the reasons under section 148 of the Act. Therefore, the notice issued under section 148 is wholly null and void and liable to be quashed because it was not in consonance with the provisions contained under section 148(2) of the Act. The ld. DR submitted that the notice under section 148 has been served upon assessee on 23.09.2011 and there may be a typographical error in the notice under section 148 of the Act. However, no material or evidence has been produced on record to justify such a contention. Therefore, contention of ld. DR is rejected. In view of the above, it is clear that since notice under section 148 have been issued prior to recording of the reasons, therefore, entire re-assessment proceedings have been vitiated and the same are null and void and liable to be quashed. - Decided in favour of assessee

Summary

Issues Involved:
1. Re-opening of assessment under section 147/148 of the Income Tax Act.
2. Addition of Rs. 2,32,86,175/- on account of long-term capital gain.
3. Addition of Rs. 1,49,440/- for alleged violation of Section 40(a)(ia) of the Income Tax Act.
4. Condonation of delay in filing the appeal.

Issue-wise Detailed Analysis:

1. Re-opening of Assessment under Section 147/148:
The original assessment was completed under section 143(3) on 06.12.2010. The Assessing Officer (AO) reopened the assessment, citing reasons under section 147 that income had escaped assessment. The AO noticed discrepancies in the computation of long-term capital gain concerning the sale of property (SCO 6, Sector 26, Chandigarh) and alleged non-compliance with Section 50C(1). The AO issued a notice under section 148 on 19.09.2011, which was served on 23.09.2011. The assessee challenged the reopening, arguing it was based on a mere change of opinion and that the AO had not recorded reasons before issuing the notice. The Tribunal found that the AO had indeed reopened the assessment based on the same facts previously considered, which constitutes a change of opinion. The Tribunal cited several judicial precedents, including the Supreme Court's decision in CIT vs. Kelvinator of India Ltd., emphasizing that a mere change of opinion does not justify reassessment. Additionally, the AO had issued a notice under section 154/155 on the same grounds but dropped the proceedings, further invalidating the reopening. The Tribunal concluded that the reopening was not justified and quashed the reassessment proceedings.

2. Addition of Rs. 2,32,86,175/- on Account of Long-term Capital Gain:
The AO made an addition of Rs. 2,32,86,175/- to the assessee's income, asserting that the long-term capital gain was underreported. The AO recalculated the gain based on the deemed sale consideration under Section 50C(1). However, since the Tribunal quashed the reopening of the assessment, all additions, including this one, were rendered invalid.

3. Addition of Rs. 1,49,440/- for Alleged Violation of Section 40(a)(ia):
The AO initially noted a possible violation of Section 40(a)(ia) due to non-deduction of TDS on rent payments. However, no addition was made in the reassessment order. The Tribunal did not find it necessary to address this issue on merit, as the reassessment itself was quashed.

4. Condonation of Delay in Filing the Appeal:
The assessee's appeal was delayed by 86 days, attributed to the assessee's illness. The assessee provided medical certificates and an affidavit detailing chronic health issues. The Tribunal, satisfied with the explanation, condoned the delay, allowing the appeal to be heard on merits.

Conclusion:
The Tribunal quashed the reassessment proceedings under section 147/148, finding them based on a change of opinion and procedural irregularities, including issuing the notice before recording reasons. Consequently, all additions made in the reassessment were invalidated. The appeal was allowed, and the order pronounced in the open court.