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2012 (9) TMI 509 - AT - Income TaxAssessment u/s 147 without disposing objection raised by assessee Held that - Assessment framed without disposing of the objections raised by the assessee deserves to be set aside. In the case of GKN Driveshafts (India) Ltd. (2002 (11) TMI 7) Supreme court held that on receipt of reasons, the noticee is entitled to file objection to issuance of notice and the AO is bound to dispose of the same by passing a speaking order. If the AO proceeds with the proceedings without disposing of the objections raised by the assessee, the entire proceedings are vitiated. Decision in favour of assessee Validity of notice u/s 148 Time limit for issuing notice u/s 148 AO issue notice after the expiry of 4 years - Held that - Onus is upon the AO to bring something on record to establish that the income chargeable to tax has escaped assessment on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, for that assessment year. Nothing has been recorded by the AO in the reasons recorded for reopening the assessment that the income chargeable to tax has escaped assessment on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The assessment framed consequent to the invalid notice issued under section 148 of the Act deserves to be annulled. Appeal decides in favour of assessee
Issues Involved:
1. Validity of reopening the assessment under section 147 of the Income Tax Act, 1961 after four years. 2. Failure of the Assessing Officer to dispose of objections raised by the assessee before reopening the assessment. 3. Application of the judgment in the case of CIT v. T.V. Sundram Iyenger & Sons Ltd. 4. Applicability of provisions of section 149(1)(b) for extending the time limit for reopening the assessment. Issue-wise Detailed Analysis: 1. Validity of Reopening the Assessment under Section 147: The primary issue in this appeal revolves around the annulment of the assessment order by the CIT(A) on the grounds that the reopening was done after four years from the end of the relevant assessment year. According to the proviso to section 147 of the Income Tax Act, 1961, such reopening is not permissible unless it is established that the income chargeable to tax has escaped assessment due to the assessee's failure to disclose fully and truly all material facts necessary for the assessment. The Tribunal noted that the original assessment was completed under section 143(3) on 31.1.2006, and the reopening was initiated on 31.3.2010, which is beyond the four-year limit. The Tribunal upheld the CIT(A)'s decision, emphasizing that the Assessing Officer did not record any failure on the part of the assessee to disclose material facts, making the reopening invalid. 2. Failure to Dispose of Objections: The CIT(A) also annulled the assessment on the basis that the Assessing Officer failed to dispose of the objections raised by the assessee against the reopening of the assessment. This action is in violation of the Supreme Court's judgment in GKN Driveshafts (India) Ltd. v. Income-tax Officer, where it was held that the Assessing Officer must dispose of such objections with a speaking order before proceeding with the assessment. The Tribunal agreed with the CIT(A) that the failure to address these objections vitiated the entire proceedings. 3. Application of the Judgment in CIT v. T.V. Sundram Iyenger & Sons Ltd.: The Revenue argued that the reopening was justified based on the Supreme Court's judgment in CIT v. T.V. Sundram Iyenger & Sons Ltd., which held that amounts received in the course of trading transactions that become the assessee's own money should be treated as income. The Tribunal, however, found that this judgment did not override the specific requirement under the proviso to section 147 that mandates recording the failure of the assessee to disclose material facts for reopening after four years. 4. Applicability of Section 149(1)(b): The Revenue contended that since the income chargeable to tax that escaped assessment exceeded Rs. 1 lakh, the time limit should be extended to six years under section 149(1)(b). The Tribunal rejected this argument, clarifying that section 149(1)(b) governs the time limit for issuing a notice under section 148, not the conditions for reopening an assessment under section 147. The Tribunal referenced its prior decision in M/s Model Exims, Kanpur v. DCIT, Kanpur, reaffirming that the proviso to section 147 must be satisfied independently of section 149(1)(b). Conclusion: The Tribunal upheld the CIT(A)'s decision to annul the assessment order, emphasizing that the reopening was invalid due to the failure to record the assessee's non-disclosure of material facts and the failure to dispose of objections raised by the assessee. The appeal by the Revenue was dismissed, affirming that the assessment framed under the invalid notice issued under section 148 deserved to be annulled.
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