2015 (6) TMI 37 - AT - Income Tax

Reopening of assessment - Addition u/s 68 - Held that - while recording the reasons by the AO, the AO has mentioned the names of three firms namely Hillridge Investment Ltd; Nisha Holdings Ltd and Shalini Holdings Ltd. and stated that the AO had issued notice u/s 148 in respect of the share application money of M/sShalini Holdings Ltd. We also find that vide the order sheet entry 27.10.2009 and 4.11.2009, the AO called the details of three parties and in response thereto the assessee filed complete details of share application money as allotted, Board Resolution, name and address of allottees and copy of challans, copy of Form No. 2 as filed with ROC, copy of bank certificate, confirmation letter with copy of incorporation certificate and income tax acknowledgement, balance sheets etc. before the AO., The AO examined the same and completed the assessment u/s. 143(3) of the I.T. Act, meaning thereby the AO has examined all the details, creditworthiness of the transactions and identity of the creditor, hence, in view of the above, the reassessment proceedings initiated u/s. 147/148 are illegal and is liable to be quashed - Decided in favour of assesse.

Summary

Issues Involved:
1. Legality of the addition made under Section 68 of the Income Tax Act, 1961.
2. Consideration of details, pleadings, and submissions during assessment.
3. Legality of interest charged under Sections 234B and 234C.
4. Stay of the demand created pursuant to the assessment.
5. Validity of observations and inferences drawn by the Assessing Officer.
6. Admission of additional grounds of appeal regarding the validity of notice under Section 148.

Detailed Analysis:

1. Legality of the Addition under Section 68:
The primary issue in all assessment years (2007-08, 2008-09, 2009-10, and 2011-12) was the addition made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, treating the share application money received by the assessee as unexplained. The AO contended that the assessee had taken accommodation entries from dummy firms/paper companies, which were used to introduce unaccounted money as share application money. The Tribunal noted that the AO had failed to provide fresh evidence to substantiate the reopening of the assessment and relied on information already on record. Consequently, the Tribunal quashed the reassessment proceedings, deeming them illegal.

2. Consideration of Details, Pleadings, and Submissions:
The assessee argued that the AO did not consider various details, pleadings, and written submissions made during the assessment proceedings. The Tribunal observed that the AO had indeed examined all the details, including share application forms, bank statements, balance sheets, and other relevant documents, during the original assessment proceedings. Therefore, the reassessment proceedings initiated on the same set of facts were considered a mere change of opinion and thus invalid.

3. Legality of Interest Charged under Sections 234B and 234C:
The assessee contended that the interest charged under Sections 234B and 234C was illegal on various factual and legal grounds. However, since the Tribunal quashed the reassessment proceedings, the issue of interest became academic and was not specifically addressed.

4. Stay of the Demand Created Pursuant to the Assessment:
The assessee requested a stay on the demand created pursuant to the assessment. Given that the Tribunal quashed the reassessment proceedings, the demand created became null and void, rendering the request for a stay moot.

5. Validity of Observations and Inferences Drawn by the AO:
The assessee argued that the observations and inferences drawn by the AO were untenable, incorrect, unwarranted, and uncalled for. The Tribunal found that the AO's reassessment was based on information already on record and did not involve any fresh tangible material. Consequently, the Tribunal held that the reassessment proceedings were invalid due to the lack of new evidence and the improper handling of objections.

6. Admission of Additional Grounds of Appeal:
The assessee raised an additional ground of appeal challenging the validity of the notice issued under Section 148. The Tribunal admitted the additional ground, citing that it was purely legal and did not require fresh facts to be investigated. The Tribunal relied on the Supreme Court decision in GKN Driveshafts (India) Ltd. v. Income-tax Officer, which mandates that the AO must dispose of objections by passing a speaking order before proceeding with the assessment. The Tribunal found that the AO had failed to pass such an order, thereby vitiating the reassessment proceedings.

Conclusion:
The Tribunal quashed the reassessment proceedings for all the assessment years in question, deeming them void ab initio due to the AO's failure to address the objections raised by the assessee and the lack of fresh evidence to justify the reopening of the assessment. Consequently, the other issues raised by the assessee became academic and were not specifically addressed. All four appeals filed by the assessee were allowed.