2016 (3) TMI 1312 - AT - Income Tax

Validity of reassessment order - failure to comply with the mandatory conditions of section 147 to 151 - the agricultural land sold by the assessee and profit earned thereof which has been claimed commission - AO passed order u/s 143(3) of the read with Rule 147 taxing 50% of the capital gain on sold as this land as short-term capital gain. - Held that - The reason recorded does not show any material based on which the reopening has been initiated. Further the reasons recorded for reopening as well as the inspector report are not in conformity with each other as the reopening has been made under the assumption with the land in question is falling within the specified number of kilometers whereas the inspector s report shows that the main land is about 11 kms from the Palwal-Tehsil. In view of the above facts we are of the view that the case of the assessee squarely falls within the parameters laid down by Hon ble Delhi High Court - the notice issued u/s 148 read with section 147 is invalid - Decided in favor of assessee.

Summary

Issues Involved:
1. Validity of the reopening of the assessment under Sections 147 and 148 of the Income Tax Act, 1961.
2. Issuance of the mandatory notice under Section 143(2) of the Income Tax Act, 1961.
3. Alleged violation of principles of natural justice.
4. Taxability of capital gains on the sale of agricultural land.
5. Overall legality and justification of the impugned assessment order.

Detailed Analysis:

1. Validity of the reopening of the assessment under Sections 147 and 148 of the Income Tax Act, 1961:
The appellant contested the reopening of the assessment, arguing that the Assessing Officer (AO) did not comply with the mandatory conditions of Sections 147 to 151. It was emphasized that there was no new tangible material that came into the possession of the AO after the filing of the return. The appellant relied on several judicial precedents, including the decisions of the Hon'ble Delhi High Court in Orient Craft Ltd. and the Hon'ble Bombay High Court in CIT vs. Tupperware Ltd., which stress that even for assessments under Section 143(1), there must be a "reason to believe" that income has escaped assessment. The Tribunal found that the reasons recorded for reopening did not show any material basis for such action and noted discrepancies between the reasons for reopening and the inspector's report. Citing the Delhi High Court's judgment in Orient Craft Ltd., the Tribunal concluded that the reopening was invalid as it lacked a tangible basis and was merely a review of the earlier proceedings.

2. Issuance of the mandatory notice under Section 143(2) of the Income Tax Act, 1961:
The appellant argued that the AO framed the impugned assessment order without issuing the mandatory notice under Section 143(2). However, since the Tribunal quashed the reopening of the assessment, this issue was not adjudicated further.

3. Alleged violation of principles of natural justice:
The appellant claimed that the AO violated principles of natural justice by recording incorrect facts and findings. However, this issue was also not adjudicated further due to the quashing of the reopening notice.

4. Taxability of capital gains on the sale of agricultural land:
The appellant contended that the agricultural land sold was not a capital asset under Section 2(14) of the Income Tax Act, as it was situated outside the municipal area and was used for agricultural purposes. The AO, however, treated the land as a capital asset and taxed the capital gains. The Tribunal did not delve into this issue due to the quashing of the reopening notice.

5. Overall legality and justification of the impugned assessment order:
The appellant argued that the impugned assessment order was bad in law, illegal, unjustified, and contrary to facts and law, and was passed without giving adequate opportunity of hearing. The Tribunal did not adjudicate on this issue separately due to the quashing of the reopening notice.

Conclusion:
The Tribunal allowed the appeal of the assessee, holding that the notice issued under Section 148 read with Section 147 was invalid, thus quashing the reopening of the assessment. Consequently, other grounds of appeal were not adjudicated. The order was pronounced in the open court on 11/03/2016.