2012 (12) TMI 561 - AT - Income Tax

Reassessment u/s 147 Whether reopening of assessment without giving the reasons for reopening sought by the assessee, will render whole proceedings unlawful and illegal Held that - No, the whole proceeding shall not be rendered as unlawful and illegal. The procedure, that was mandatory to be followed when a notice u/s 148 was issued. If the said procedure is not followed, orders of lower authorities have to be set aside and matter remitted back to AO for doing the assessment after supplying copies of reasons recorded. It is a curable procedural infirmity and the matter has to go back to the point where the defect occurred so as to cure of such defect, and continue with the proceedings in accordance with law. Therefore order of AO set aside & matter remand back to AO

Summary

Issues Involved:
1. Validity of reopening the assessment under Section 147 of the Income Tax Act, 1961.
2. Non-disclosure of reasons for reopening to the assessee.
3. Method of computation of loss on the sale of assets.

Issue-wise Detailed Analysis:

1. Validity of Reopening the Assessment under Section 147 of the Income Tax Act, 1961:
The primary grievance of the assessee was the reopening of the assessment despite the original assessment being completed under Section 143(3) of the Income Tax Act, 1961. The reopening was initiated after four years from the impugned assessment year, invoking the proviso to Section 147. The assessee argued that there was no failure on its part to disclose fully and truly any material facts necessary for the assessment. However, the CIT(A) upheld the reopening, stating that it was based on information and conclusions drawn during the assessment proceedings for the preceding years (1999-00 and 2000-01), where similar losses were disallowed. This information was considered external and not from the assessment records of the impugned year, thereby validating the reopening.

2. Non-disclosure of Reasons for Reopening to the Assessee:
The assessee contended that the reasons for reopening were not provided despite a specific request, which hindered its ability to object to the reopening. The Assessing Officer (A.O.) acknowledged the request but failed to furnish the reasons. The tribunal referenced the Supreme Court's decision in GKN Driveshafts (India) Ltd. Vs. ITO, which mandates that the A.O. must provide the reasons for reopening and dispose of any objections filed by the assessee. The tribunal found that the failure to provide reasons was a procedural lapse, but it did not render the proceedings unlawful. Instead, it required the matter to be remitted back to the A.O. to cure the defect by providing the reasons and allowing the assessee to file objections.

3. Method of Computation of Loss on Sale of Assets:
The A.O. noted that the assessee claimed a loss of Rs. 23,10,007 on the sale of fixed assets, which was included in the business income. The A.O. disallowed this claim, stating that the details provided were insufficient and the transactions involved related concerns. The assessee argued that the loss was computed based on the difference between the sale consideration and the written down value (WDV) of the assets, as shown in the computation statement and depreciation schedule. However, the tribunal observed that the assessee did not compute the short-term gains or losses as per Section 50 of the Act, which applies to depreciable assets. The tribunal concluded that the assessee did not disclose all material facts fully and truly, and the A.O. applied the wrong provision of law during the original assessment.

Conclusion:
The tribunal set aside the orders of the lower authorities and remitted the matter back to the A.O. The A.O. was directed to furnish the reasons for reopening the assessment to the assessee, allowing the assessee to file objections. The A.O. was then to proceed in accordance with the law, thereby curing the procedural infirmity. The appeal filed by the assessee was allowed for statistical purposes, and the stay petition was dismissed as infructuous.