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2018 (11) TMI 1702 - AT - Income TaxValidity of Reopening of assessment u/s 147 - non independent application of mind by AO - Reassessment made without serving any notice u/s. 143(2) - Information regarding survey by Sales Tax Department has been solely used by the AO in letter and spirit for formation of belief of escapement of income - HELD THAT - Information regarding survey by Sales Tax Department has been solely used by the Assessing Officer in letter and spirit for formation of belief of escapement of income without making any enquiry or application of mind, particularly when subsequent proceedings before various authorities of Sales Tax Department were available before issuance of notice u/s.148 and were got acknowledged to the AO before passing the reassessment order. In presence of these facts, the reasons recorded by the AO cannot, in any way, be said to be proper to form a belief of escapement of income, as the information so received was neither found well founded nor the AO made any efforts to make any verification or application of his mind on the same. The provisions of section 147 do not give unfettered powers to reopen the assessment and the AO is required to satisfy the pre-conditions as given in the said section, which is lacking in the present case. For this, there are several decisions of Hon ble Courts, as also cited by the assessee before the ld. CIT(A). In view of this, the reassessment u/s. 147 cannot be said to be valid. Non-issuance of notice u/s. 143(2) before passing the reassessment - The issue of notice u/s. 143(2) is mandatory in the reassessment proceedings and its failure to do so, make the re-assessment as void. It is so held also in CWT vs. HUF of HH Late Shri J.M. Scindia 2008 (2) TMI 53 - BOMBAY HIGH COURT . Similar view has been taken by Hon ble Bombay High Court in another case CIT vs. Mundra Nanvati 2009 (7) TMI 1253 - BOMBAY HIGH COURT . In view of this, the impugned re-assessment deserves to be held as void. Reopening of assessment u/s. 147/148 itself is held invalid on legal aspects of this case - Decided in favour of assessee
Issues Involved:
1. Validity of the assessment due to non-issuance and non-service of notice under Section 143(2). 2. Confirmation of the addition of ?3,82,55,045 based on the Sales Tax Authorities' findings. 3. Enhancement of the addition under Section 69C without notice and opportunity for the assessee to be heard. 4. Jurisdictional validity of the assessment framed under Section 143(3)/147. 5. Validity of the initiation of proceedings and assessment under Section 148. 6. Basis of reassessment being set aside by the Delhi High Court. Issue-wise Detailed Analysis: 1. Validity of the Assessment due to Non-issuance and Non-service of Notice under Section 143(2): The assessee argued that the reassessment was invalid because no notice under Section 143(2) was issued and served, which is a sine qua non for making an assessment under Section 143(3). The CIT(A) acknowledged that no such notice was found in the assessment records, yet upheld the assessment. The ITAT referenced the Delhi Tribunal decision in Mohinder Kumar Chhabra, which emphasized that the issuance of notice under Section 143(2) is mandatory. The ITAT concluded that the failure to issue this notice rendered the reassessment void, aligning with decisions from the Bombay High Court and the Supreme Court. 2. Confirmation of the Addition of ?3,82,55,045 Based on Sales Tax Authorities' Findings: The assessee contested the addition of ?3,82,55,045 upheld by the CIT(A), arguing that the Sales Tax Authorities' findings were not substantiated by evidence and had been set aside by VAT Appellate Authorities. The ITAT noted that the reassessment was based on a survey by the Sales Tax Department, which was subsequently quashed by higher authorities. The ITAT found that the Assessing Officer (AO) did not verify or apply independent judgment to the information received, making the reassessment improper. 3. Enhancement of the Addition under Section 69C without Notice and Opportunity for the Assessee to be Heard: The assessee argued that the AO enhanced the addition under Section 69C by ?62,89,918 without issuing a notice of enhancement or providing an opportunity to be heard. The CIT(A) upheld this addition. The ITAT did not specifically address this issue in detail due to the overall invalidation of the reassessment proceedings. 4. Jurisdictional Validity of the Assessment Framed under Section 143(3)/147: The assessee raised additional grounds challenging the jurisdictional validity of the assessment framed under Section 143(3)/147, arguing that the initiation of proceedings and the assessment were without satisfying the preconditions of Section 148. The ITAT admitted these additional grounds, citing the Supreme Court decisions in National Thermal Power Corporation Limited vs. CIT and CIT vs. Varas International (P) Ltd., which allow legal questions to be raised at any stage. 5. Validity of the Initiation of Proceedings and Assessment under Section 148: The assessee argued that the initiation of proceedings and the assessment under Section 148 were invalid because the preconditions for invoking Section 148 were not satisfied. The ITAT observed that the AO relied solely on the Sales Tax Department's survey report without independent verification. The ITAT concluded that the reasons recorded for reopening the assessment were not proper, as the information was neither well-founded nor verified by the AO, rendering the reassessment invalid. 6. Basis of Reassessment Being Set Aside by the Delhi High Court: The assessee contended that the basis of reassessment, being the Sales Tax Department's survey and subsequent assessment order, had been set aside by the Delhi High Court prior to the issuance of the Section 148 notice. The ITAT noted that the AO did not consider the subsequent orders from higher authorities of the Sales Tax Department, which quashed the initial findings. This lack of consideration further invalidated the reassessment proceedings. Conclusion: The ITAT concluded that the reassessment proceedings were invalid due to the non-issuance of notice under Section 143(2), improper initiation of proceedings under Section 148, and reliance on quashed findings from the Sales Tax Department without independent verification. Consequently, the ITAT allowed the appeal of the assessee, rendering the reassessment and the additions therein void. The merits of the additions were not addressed as they became academic due to the invalidation of the reassessment.
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