2018 (1) TMI 1506 - AT - Income Tax

Reopening of assessment u/s 147 - non disposal of appellant s objections by the AO - HELD THAT - AO formed a belief that income has escaped assessment upon receipt of information from DDIT(Inv) Mumbai and Sales Tax Deptt. Govt of Mahahrashtra and thereafter the re-assessment was framed vide order dated 29.12.2010 u/s 143(3) r.w.s. 148 without having disposed off the objections filed by the assessee against the reasons recorded on the basis of which the re-assessment proceedings were initiated and notice u/s 148 was issued. The perusal of the assessment order reveals that though the assessee vide letter dated 15.12.2010 filed before the AO various objections but there is no mention of these objections being disposed before the framing of the re-assessment order. DR could not place any evidence to controvert the argument of non disposal of the objections filed by the assessee. In our opinion the objections filed by the assessee during the reassessment proceedings has to be disposed off failing which the reassessment order so passed by the AO is nullity. See M/S. BAYER MATERIAL SCIENCE PVT LTD VERSUS THE DEPUTY COMMISSIONER OF INCOME TAX-10 (3) AND OTHERS 2016 (3) TMI 179 - BOMBAY HIGH COURT - Decided in favour of assessee.

Summary

Issues:
1. Validity of reopening assessment under section 147 of the Income Tax Act, 1961.
2. Non-disposal of objections by the Assessing Officer during reassessment proceedings.
3. Justification of disallowance of expenses incurred on purchase of promotional items.

Issue 1: Validity of Reopening Assessment under Section 147:
The appellant challenged the action of the Assessing Officer in reopening the assessment under section 143(3) without valid belief that income had escaped assessment. The appellant contended that the notice under section 148 was issued beyond the prescribed period without any failure on their part to disclose material facts. The appellant argued that the reassessment order was unjustified as the Assessing Officer's belief was not supported by evidence, specifically citing the lack of confession by Chetan Shah regarding the alleged bogus dealings. The appellant also raised concerns about the lack of proper reasons justifying the failure to disclose material facts, and the absence of addressing objections in the reassessment order.

Issue 2: Non-Disposal of Objections during Reassessment Proceedings:
The assessment order was challenged on the grounds of non-disposal of objections filed by the assessee during the reassessment proceedings. The appellant argued that the assessment order was invalid and should be quashed due to the Assessing Officer's failure to address the objections. The appellant relied on a jurisdictional High Court decision to support their argument. The Assistant Commissioner admitted the lack of disposal of objections and requested time to verify the facts. Ultimately, it was acknowledged that if objections were not disposed of, the appeal should be restored for proper disposal and assessment.

Issue 3: Disallowance of Expenses on Promotional Items:
The Assessing Officer disallowed expenses incurred on the purchase of promotional items totaling a specific amount. The appellant contested this disallowance, arguing that there was no evidence from Chetan Shah to support the claim that the dealings were not genuine. The appellant also highlighted the submission of invoices and bank details to validate the transactions. The appellant requested an opportunity to cross-examine Chetan Shah to clarify the transactions. The Assistant Commissioner did not appreciate the evidence provided by the appellant and upheld the disallowance based on conjectures and surmises.

In conclusion, the Appellate Tribunal set aside the assessment order passed under section 143(3) r.w.s. 147 of the Act due to the non-disposal of objections during the reassessment proceedings. As a result, the other grounds raised by the appellant on merits were not adjudicated, and the appeal was partly allowed.