2011 (9) TMI 87 - HC - Income Tax

Reopening assessment - In the original assessment order, the assessing officer has specifically referred to the second proviso to Section 48 and thereafter applied the proviso to Section 112 of the Act - Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly reopened - No merit in the appeal and the same is hereby dismissed with no order as to costs - Decided in favour of assessee.

Summary

Issues:
Validity of reopening assessment for assessment year 2001-02 due to incorrect tax rate on long term capital gains.

Analysis:
The issue in this case revolves around the validity of the Income Tax Appellate Tribunal's decision to hold the reopening of the assessment for the assessment year 2001-02 as invalid. The appellant, a nonresident, initially declared an income of Rs. 138.96 crores, which was later assessed at Rs. 142.85 crores. The assessment was sought to be reopened based on the contention that the long term capital gains were taxed at 10% instead of the correct rate of 20%. The assessing officer, Commissioner of Income Tax (Appeals), and Income Tax Appellate Tribunal were involved in the decision-making process leading to the current appeal by the Revenue.

The reasons recorded by the Assessing Officer for reopening the assessment highlighted that the incorrect application of the tax rate resulted in a short levy of tax, including interest under Section 234B. The main contention was that under Section 112(1)(c)(ii) of the Income Tax Act, long term capital gains should be taxed at 20%, while in this case, it was taxed at 10%. The crux of the matter was the interpretation and application of the relevant provisions of Section 112 regarding the tax rate on long term capital gains for nonresidents.

The High Court analyzed Section 112 of the Act, emphasizing that the tax payable by a nonresident on long term capital gains is indeed 20%. However, the proviso to Section 112(1) allows for certain cases where the gains exceeding 10% shall be ignored. The original assessment order had taxed the long term capital gains at 10% by invoking this proviso. The Court noted that the reasons recorded for reopening the assessment did not address the applicability of the proviso to the case or provide reasons why it should not apply, rendering the reopening invalid.

The Court dismissed the Revenue's argument that the second proviso to Section 48 was not applicable to a nonresident, emphasizing that the validity of the reopening must be judged based on the recorded reasons. Since the reasons did not suggest any fault in invoking the proviso to Section 112, the Court held that the assessment had not been validly reopened. The absence of recorded reasons challenging the original assessment's application of the proviso led to the dismissal of the appeal, with no order as to costs.