2018 (11) TMI 1583 - AT - Income Tax

Validity of reopening of assessment - Assessment u/s 147 after issue of notice u/s 153A - non providing copies of statements and did not allow cross-examination to assessee - failure to provide opportunity to file objections to the reopening of assessment - denial of natural justice - Held that - since the Assessing Officer did not provide copies of statements and did not allow cross-examination, then the plea of assessee that it could not object to the reasons recorded for reopening the assessment has merits to be allowed and for such act, wherein no proper opportunity was given to the assessee to file objections to re-assessment, proceedings initiated under section 147/148 of the Act cannot stand. There is no merit in the observations of CIT(A) that the assessee had participated in assessment proceedings and hence, it cannot be said that he had any objections to reopening of assessment. The preliminary issue affecting the jurisdiction of Revenue authorities can be raised at any stage and accordingly, we admit the plea of assessee and hold that assessment order passed in the case without jurisdiction is both invalid and bad in law. The grounds of appeal No.1 to 3 raised by assessee are thus, allowed.

Issues Involved:
1. Validity of assessment under Section 147 after issuance of notice under Section 153A.
2. Validity of reopening assessment under Section 148/147 without satisfying conditions and granting opportunity to raise objections.
3. Finalization of assessment without granting opportunity to cross-examine evidence/statements.
4. Additions on account of alleged bogus unsecured loans and interest.
5. Adhoc addition as bogus commission.
6. Presumption of cash payment for immovable property purchase.
7. Adhoc addition on account of alleged unexplained investment.
8. Allowance of alleged unexplained investment as cost of acquisition.

Detailed Analysis:

1. Validity of Assessment under Section 147 after Issuance of Notice under Section 153A:
The assessee argued that the assessment under Section 147 was invalid after the issuance of a notice under Section 153A. The CIT(A) noted that the notice under Section 153A was issued by mistake and was void ab initio, hence it did not abate the proceedings under Section 147. The proceedings under Section 147 were valid as they were initiated based on information from the DDIT(Inv) and other documents seized.

2. Validity of Reopening Assessment under Section 148/147:
The assessee contended that the reopening of assessment was improper as the conditions for resuming jurisdiction under Section 147 were not satisfied and no opportunity was given to raise objections. The CIT(A) noted that the assessee was given reasons recorded for reopening and was asked to file objections, but the assessee did not file any objections and participated in the reassessment proceedings. The CIT(A) held that the reopening was valid and the assessee had been given sufficient opportunity.

3. Finalization of Assessment without Cross-Examination:
The assessee argued that the assessment was finalized without granting an opportunity to cross-examine the evidence/statements relied upon by the AO, which violated the principles of natural justice. The CIT(A) and the AO stated that sufficient opportunity was given, and the assessee did not raise objections against the reopening of assessment. However, the Tribunal held that non-provision of cross-examination was a serious flaw, making the assessment invalid.

4. Additions on Account of Alleged Bogus Unsecured Loans and Interest:
The AO made additions of ?3.60 crores as bogus unsecured loans and ?1,70,961 as interest on such loans, based on statements and documents seized during searches. The assessee contended that these additions were improper and unsupported by evidence. The Tribunal found that the AO did not provide the necessary documents or allow cross-examination, making the additions unsustainable.

5. Adhoc Addition as Bogus Commission:
The AO made an adhoc addition of ?7,20,000 as bogus commission. The assessee argued that this was unjustified and contrary to the provisions of the Act. The Tribunal held that in the absence of cross-examination and proper evidence, such additions could not be sustained.

6. Presumption of Cash Payment for Immovable Property Purchase:
The AO presumed that ?15,00,000 was paid in cash for the purchase of immovable property based on seized documents. The assessee contended that this presumption was incorrect and unsupported by evidence. The Tribunal noted that the assessee was not given an opportunity to rebut the documents, making the presumption invalid.

7. Adhoc Addition on Account of Alleged Unexplained Investment:
The AO made an adhoc addition of ?7,50,000 as unexplained investment. The assessee argued that this was based on mere presumption without any evidence. The Tribunal held that such additions could not be justified without proper evidence and opportunity for the assessee to explain.

8. Allowance of Alleged Unexplained Investment as Cost of Acquisition:
The assessee argued that if the addition of ?7,50,000 as unexplained investment was sustained, it should be allowed as the cost of acquisition of the investment. The Tribunal did not address this issue separately as the primary addition was found to be invalid.

Conclusion:
The Tribunal concluded that the assessment proceedings under Section 147/148 were invalid due to the non-provision of necessary documents and denial of cross-examination, which violated the principles of natural justice. Consequently, the reassessment order was set aside, and the appeals of the assessee were allowed.

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