2019 (3) TMI 1610 - AT - Income Tax

Reopening of assessment u/s 147 - reopening after expiry of four years - bogus purchases - reopening based on just information received from DDIT-Investigation Wing, Mumbai - HELD THAT - AO was having just information and the same is part of assessment order. Hence, it is established that the reasons were recorded just on the basis of information without any material and the same is not sufficient for reopening the assessment completed under scrutiny proceedings of Sec.143(3) - the relevant assessment year under consideration is 2007- 08, whereas reopening was on 28/03/2014 by issue of notice u/s.148. Since the assessment was reopened after expiry of four years from the end of the relevant assessment year, the department has to show that there is failure on the part of the assessee to make return u/s.139 or in response to notice issued u/s. 142(1) or Section 148 are to disclose fully and truly all material facts necessary for his assessment, for that assessment year. However, nowhere department has shown that there is any failure on the part of the assessee to disclose fully and truly all the material facts in the return of income so filed, accordingly, in terms of the jurisdictional High Court decision in the case of IPCA Laboratories Ltd., vs. Gajanand Meena, DCIT Others 2001 (7) TMI 100 - BOMBAY HIGH COURT no reopening after expiry of four years is valid unless department shows that there is failure on the part of the assessee to disclose fully and truly all material facts. Accordingly, we do not find any justification in the reopening so made u/s.147. Bogus purchases addition - From the record we found that the assessee had submitted all the documents during the assessee proceedings, such as purchase bill, sales against said alleged purchase, payment by account payee cheque, confirmation of accounts of alleged parties, stock register. The assessee has also produced the complete books of accounts, AO has not pointed out any mistake in such records. The assessee has also produced the retraction statement of alleged parties. AO has not provided any cogent material in support of his claim. There is no material on record other that the third party statement, which were also retracted. Alleged parties have also replied to summons issued u/s 131 of the Act and provided all the required details to the AO. The assessee has produced the director/partner of alleged parties and the Ld. AO had recorded the statement on oath. In the whole statement there is no adverse answer by the said director/partner of alleged parties. No merit for the addition so made by the AO when all the documentary evidences with respect to the purchases, corresponding sales, quantitative statement was filed before the AO. The alleged party has also replied to the summon issued by the AO u/s.131 and provided all the information required by the AO - Decided in favour of assessee.

Issues Involved:
1. Validity of reopening of assessment under Section 147.
2. Jurisdiction of the Assessing Officer (AO) in issuing notice under Section 148.
3. Merits of the addition made for alleged bogus purchases.
4. Validity of order passed under Section 263 by the Commissioner of Income Tax (CIT).

Issue-wise Detailed Analysis:

1. Validity of Reopening of Assessment under Section 147:

The assessee contested the reopening of the assessment, arguing that the notice issued under Section 148 by the Assistant Commissioner of Income Tax (ACIT), Circle-2, Thane, was without jurisdiction. The original return for the assessment year 2007-08 was filed with Ward 4(2), Thane, and the assessment order under Section 143(3) was passed by Income Tax Officer (ITO), Ward 2(3), Thane. The reopening was based on information received from the Director General of Income Tax (Investigation), Mumbai, regarding alleged accommodation entries from certain diamond concerns. However, it was contended that the reopening was made solely on the basis of this information without independent application of mind by the AO. The tribunal held that reopening solely on the basis of information received from the Investigation Wing and without independent application of mind is void. The tribunal also noted that the reopening was made after four years from the end of the relevant assessment year, and there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Therefore, the reopening was not justified.

2. Jurisdiction of the Assessing Officer in Issuing Notice under Section 148:

The assessee argued that the ACIT, Circle-2, Thane, had wrongly assumed jurisdiction to reopen the case and issue notice under Section 148, which was subsequently transferred to the jurisdictional officer. The tribunal agreed with the assessee, citing judicial pronouncements that a notice issued without valid jurisdiction renders the subsequent proceedings void. The tribunal quashed the reassessment proceedings on the grounds that the notice under Section 148 was issued without jurisdiction.

3. Merits of the Addition Made for Alleged Bogus Purchases:

The AO made an addition of ?4,16,38,902 on account of unproved purchases, which was later reduced by the CIT(A) to ?2,84,96,601 by estimating a profit of 6% on the entire sales. The assessee provided all necessary documents, such as purchase bills, sales records, payment proofs, and stock registers, to substantiate the purchases. The AO issued summons to the suppliers, who confirmed the transactions and provided relevant documents. The tribunal found that the AO did not have any material evidence other than third-party statements, which were retracted. The tribunal concluded that there was no justification for the addition made by the AO, as all documentary evidence was provided, and the suppliers had confirmed the transactions. Consequently, the tribunal deleted the addition.

4. Validity of Order Passed under Section 263 by the Commissioner of Income Tax:

For the assessment year 2008-09, the CIT invoked Section 263 to revise the AO's order, directing a 100% addition for alleged bogus purchases, as opposed to the 3% addition made by the AO. The tribunal observed that the AO had made a detailed inquiry and justified the 3% addition. The CIT did not have any material to justify a higher addition. The tribunal noted that the AO's order was not erroneous or prejudicial to the interest of the revenue, as the AO had taken one of the permissible views in law. The tribunal cited several judicial precedents supporting the AO's view and concluded that the CIT's order under Section 263 was not justified. The tribunal allowed the assessee's appeal, setting aside the CIT's order.

Conclusion:

In both appeals, the tribunal ruled in favor of the assessee. The reopening of the assessment under Section 147 was deemed invalid due to lack of jurisdiction and independent application of mind. The additions made for alleged bogus purchases were deleted as the assessee provided sufficient documentary evidence, and the suppliers confirmed the transactions. The order passed under Section 263 by the CIT was also set aside, as the AO's original order was found to be justified and not erroneous or prejudicial to the interest of the revenue.

← Previous Next →