2016 (2) TMI 1219 - AT - Income Tax

Reopening of assessment - assessment u/s 144 - HELD THAT - We find that in these cases the AO has made the assessments u/s 144. Before the CIT(A) also there was no representation on behalf of the assessee. CIT(A), therefore, decided the appeals without hearing the assessee. We are, therefore, of the view that since both the authorities below have decided the matter without hearing the assessee, in view of principle of natural justice and fair play, these appeals need to be restored to the file of the AO for deciding the same after providing due opportunity of being heard to the assessee. We, therefore, restore these appeals to the file of the AO to make fresh assessments after providing the assessee due opportunity of being heard. All the appeals of the assessee are allowed for statistical purposes.

Summary

Issues Involved:
1. Validity of the assessment orders and notices issued under sections 148/147.
2. Additions made by the Assessing Officer (A.O.) as unexplained cash credits.
3. Additions made by the A.O. as unexplained investments in building construction.
4. Estimation of sales and net profit by the A.O.
5. Legality of the orders passed by the CIT(A).
6. Overall validity and legality of the additions made.

Detailed Analysis:

1. Validity of the Assessment Orders and Notices Issued Under Sections 148/147:
The assessees challenged the reopening of cases for the assessment years 1996-1997, 1997-1998, and 1999-2000, arguing that the notices issued under sections 148/147 were time-barred and invalid. The A.O. reopened the cases beyond the statutory period of four years from the end of the relevant assessment years without obtaining prior approval from the JCIT. The Tribunal noted that the reasons recorded by the A.O. were based on mere suspicion and lacked substantial evidence, rendering the reopening action barred by limitation and bad in law.

2. Additions as Unexplained Cash Credits:
The A.O. made additions based on the projected balance sheets submitted to the bank, treating the amounts as unexplained cash credits. For instance, in ITA No. 61/Ind/2014, the A.O. added Rs. 9,24,734/- as unexplained cash credit. The Tribunal observed that these amounts were loans from family members and sundry creditors, which were not fresh loans during the relevant assessment year. The A.O. failed to provide the inspector's report to the assessee for cross-examination, and the additions were made purely on presumption without verifying the facts.

3. Additions as Unexplained Investments in Building Construction:
The A.O. made additions on an estimated basis for unexplained investments in building construction. For example, in ITA No. 63/Ind/2014, an addition of Rs. 28,15,977/- was made based on the departmental valuer's report. The Tribunal found that the A.O. did not consider the opening balances and previous years' additions while making these estimations. The assessee provided a valuation report from a registered valuer, which was lower than the departmental valuation, indicating discrepancies in the A.O.'s approach.

4. Estimation of Sales and Net Profit:
The A.O. estimated sales and net profit without any concrete basis. In ITA No. 61/Ind/2014, sales were estimated at Rs. 21,45,689/- with a net profit of Rs. 1,50,000/-. The Tribunal noted that these estimations were based on guesswork and lacked supporting evidence. The A.O. assumed business activities without verifying the actual business status during the relevant years.

5. Legality of the Orders Passed by the CIT(A):
The assessees contended that the orders passed by the CIT(A) were illegal and wrong. The Tribunal observed that the CIT(A) dismissed the appeals for non-appearance without considering the legal grounds raised. The CIT(A) failed to decide the legal matter regarding the reopening of cases under section 148, leading to procedural lapses.

6. Overall Validity and Legality of the Additions Made:
The Tribunal found that the A.O.'s additions were excessive, based on presumptions, and lacked proper verification. The assessments were made under section 144 without providing the assessees an opportunity to present their case. The CIT(A) also decided the appeals without hearing the assessees, violating the principles of natural justice and fair play.

Conclusion:
The Tribunal restored the appeals to the file of the A.O. for fresh assessments after providing due opportunity of being heard to the assessees. The appeals were allowed for statistical purposes, emphasizing the need for a fair hearing and proper verification of facts.

Pronounced in open Court on 29.2.2016.