2014 (5) TMI 1170 - AT - Income Tax

Reopening of assessment - no opportunity to cross examine - Held that - A.O. has been heavily carried away by the information of DDIT(Inv) and has ignored the fact that the share application money was received on 22.03.2006 through cheque No. 453639. M/s. Alliance Intermediatories and Network p. Ltd. is assessed to tax. Board s resolution and confirmation of this company was filed before A.O. All these documents establish the identity of the share applicant and the genuinity of the transaction is also proved on record. The statement of Shri Mukesh Choksi was recorded at the back of the assessee and no opportunity to cross examine him was given to the assessee. A.O. has not made his independent inquiries and verification to ascertain the correct facts. Therefore, we can safely hold that the assumption of jurisdiction by A.O. u/s 147 r.w.s. 148 is invalid and the assessment so made becomes authorities below initio void. However, we quash the order made u/s 147/143(3) of the Act in question and also hold that the addition of ₹ 5 lakhs in assessee s hands is not warranted. Accordingly, we allow the appeal by the assessee.

Summary

Issues involved: Reopening of assessment proceedings u/s 147, Addition of share capital as bogus u/s 68, Alleged commission expenses on raising share capital

Reopening of assessment proceedings u/s 147:
The appeal was against the order of the ld. CIT(A) for A.Y. 2006-07. The AO initiated action u/s 147 after receiving information about accommodation entries in the form of share application money. The AO issued notice u/s 148, and the assessee-company requested to treat the original ROI as the response to the notice. The AR produced evidence to prove that the share application money was genuine. The AO, however, proceeded with the reassessment without forming an independent opinion, relying heavily on directions from DDIT(Inv). The Tribunal held that the AO did not apply his mind independently and quashed the order u/s 147/143(3), declaring the addition of the share capital as not warranted.

Addition of share capital as bogus u/s 68:
The assessee appealed the addition of &8377; 5 lakhs u/s 68, treating the share capital as bogus. The Tribunal found that the share application money was for 25000 equity shares with relevant evidence filed to ROC, bank statements, etc. The Tribunal noted that the judgment of the Hon'ble Delhi High Court directly applied to the case, establishing the identity and genuineness of the transaction. The AO heavily relied on information from DDIT(Inv) and did not conduct independent verification, making the assessment void ab initio. Consequently, the Tribunal held the addition of &8377; 5 lakhs in the assessee's hands as unwarranted and allowed the appeal.

Alleged commission expenses on raising share capital:
The appeal also contested the addition of &8377; 7,500 as commission expenses incurred on raising share capital. However, the Tribunal's detailed analysis focused on the share capital addition u/s 68, where it was established that the AO's reliance on external information without independent verification rendered the assessment invalid. As a result, the Tribunal quashed the order u/s 147/143(3) and held the addition of &8377; 5 lakhs as unjustified, thereby allowing the appeal by the assessee.

In conclusion, the Tribunal's judgment highlighted the importance of independent assessment by the AO and the need for proper verification before making additions to the assessee's income. The decision emphasized the significance of providing relevant evidence to establish the genuineness of transactions and the critical role of legal precedents in determining the validity of additions in income tax assessments.