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2014 (12) TMI 90 - AT - Income TaxValidity of reopening of assessment u/s 148 - Held that - Section 151 clearly states that no such notice shall be issued unless the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is application of mind and due diligence before according sanction to the reasons recorded by the AO - the order sheet which is placed on record show that the Commissioner has simply affixed approved at the bottom of the note sheet prepared by the ITO technical - Nowhere the CIT has recorded his satisfaction - the important safeguards provided in sections 147 and 151 were lightly treated by the officer and the Commissioner - the ITO could not have had reason to believe that income had escaped assessment by reasons of the appellant-firm s failure to disclose material facts and if the Commissioner had read the report carefully he could not have come to the conclusion that this was a fit case for issuing a notice u/s 148 - The notice issued u/s 148 was invalid. Section 147 and 148 are charter to the Revenue to reopen earlier assessments and are protected by safeguards against unnecessary harassment of the assessee - They are sword for the Revenue and shield for the assessee. Section 151 guards that the sword of Sec. 147 may not be used unless a superior officer is satisfied that the AO has good and adequate reasons to invoke the provisions of Sec. 147 - The superior authority has to examine the reasons, material or grounds and to judge whether they are sufficient and adequate to the formation of the necessary belief on the part of the assessing officer - the Commissioner has simply put approved and signed the report thereby giving sanction to the AO - Nowhere the Commissioner has recorded a satisfaction note not even in brief - it cannot be said that the Commissioner has accorded sanction after applying his mind and after recording his satisfaction thus, the contention of the assessee that the reopening is bad in law is upheld Decided in favour of assessee.
Issues Involved:
1. Erroneous order of the Ld.CIT(A). 2. Deletion of addition made under Section 68 for unexplained share application money and unsecured loans. 3. Deletion of addition made under Section 69C for unaccounted cash paid for obtaining accommodation entries. 4. Deletion of addition made by AO disallowing expenses. 5. Acceptance of additional evidence by Ld.CIT(A) without following legal procedures. 6. Validity of best judgment assessment under Section 144. 7. Validity of initiation of proceedings under Section 148. Issue-wise Detailed Analysis: 1. Erroneous Order of the Ld.CIT(A): The Revenue contended that the order passed by the Ld.CIT(A) was erroneous and contrary to facts and law. This general ground was not pressed further during the hearing. 2. Deletion of Addition under Section 68: The Revenue argued that the Ld.CIT(A) erred in deleting the addition of Rs. 59,82,702/- made by the AO under Section 68 of the Act, which pertained to unexplained share application money and unsecured loans. The Ld.CIT(A) was said to have ignored the findings of the AO and the fact that the assessee did not discharge the onus of proving the creditworthiness of the creditors and the genuineness of the transactions. 3. Deletion of Addition under Section 69C: The Revenue also contended that the Ld.CIT(A) erred in deleting the addition of Rs. 30,738/- made under Section 69C of the Act, which was related to unaccounted cash paid for obtaining accommodation entries. The Ld.CIT(A) was accused of ignoring the AO's findings and the involvement of the assessee in obtaining accommodation entries. 4. Deletion of Addition for Disallowed Expenses: Another issue raised by the Revenue was the deletion of the addition of Rs. 17,72,395/- made by the AO, which disallowed certain expenses. The Ld.CIT(A) was said to have ignored the AO's findings and the fact that the assessee did not provide necessary details to substantiate its claim. 5. Acceptance of Additional Evidence: The Revenue contended that the Ld.CIT(A) erred in accepting additional evidence without following the procedure laid down by law. 6. Validity of Best Judgment Assessment under Section 144: The assessee, in its cross-objection, argued that the Ld.CIT(A) erred in holding the best judgment assessment under Section 144 as valid despite observing that the assessee had complied fully with all notices and hearings. The assessee contended that the assessment order should have been annulled. 7. Validity of Initiation of Proceedings under Section 148: The assessee also challenged the validity of the initiation of proceedings under Section 148, arguing that there was no material, fresh material, or circular on record to form the basis for the reasons to believe for initiating reassessment proceedings. The assessee further argued that the AO wrongly assumed jurisdiction under Section 148 based on vague, unsupported, and general information, making the initiation of proceedings bad in law. The assessee also contended that the assessment was framed without confronting the information material or any statement to the assessee, violating principles of natural justice and provisions of Section 142(3). Judgment Analysis: Reopening of Assessment: The Tribunal first addressed the assessee's cross-objection challenging the jurisdiction of the AO in reopening the assessment. The Tribunal found that the AO did not apply his mind independently and merely relied on vague information received from the CIT, Delhi II. The reasons for reopening were not based on tangible material, and the AO issued notices under Section 148 mechanically. The Tribunal cited the Delhi High Court judgment in Signature Hotels (P) Ltd. vs. ITO, which held that reasons to believe must be based on specific, tangible material and not vague information. The Tribunal also referred to the case of CIT vs. Atul Jain, which emphasized that the AO must verify the correctness of the information before issuing a notice under Section 148. Approval by ACIT: The Tribunal observed that the ACIT did not record his satisfaction as required under Section 151 of the Act and merely granted approval without applying his mind. The Tribunal referred to the Mumbai 'E' Bench of the Tribunal in Amarlal Bajaj vs. ACIT, which held that the superior authority must apply its mind and record satisfaction before granting approval for issuing a notice under Section 148. Conclusion: Based on the above findings, the Tribunal quashed the reopening of the assessment as bad in law and allowed the assessee's cross-objection. Consequently, the Tribunal did not adjudicate on the other grounds raised by the assessee, as it would be an academic exercise. Since the assessee's cross-objection was allowed, the Revenue's appeal was dismissed as infructuous. Final Order: The assessee's cross-objection was allowed, and the Revenue's appeal was dismissed. The order was pronounced in the Open Court on 14.11.2014.
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