2019 (8) TMI 1454 - AT - Income Tax

Reopening of assessment u/s 147 - non compliance to notice - as per Revenue there was no compliance on the part of the assessee to the notice issued by AO u/s 148 and there was not even any request made by the assessee in writing to treat the return of income originally filed as the return filed in response to notice issued u/s 148 - HELD THAT - The notice u/s 148 dated 31.03.2017 thus was duly complied with by the assessee and this compliance was in accordance with law as held by the ld. CIT(Appeals) after discussing all the facts of the case and the relevant provisions of the law. D.R. in this regard has not raised any material contention to rebut or controvert the findings or reasons given by the ld. CIT(Appeals) to decide this issue in favour of the assessee. Moreover, it is observed that the reopening of assessment by the Assessing Officer was held to be bad-in-law by the ld. CIT(Appeals) on as many as three separate counts and the Revenue having challenged the same only on one count and not on other two counts, this appeal of the Revenue has become only academic. Keeping in view all these facts and circumstances of the case, we find no merit in the appeal of the Revenue and dismiss the same.

Summary

Issues Involved:
1. Validity of the reopening of assessment under Section 147.
2. Compliance with notice under Section 148.
3. Requirement of issuing notice under Section 143(2).
4. Reassessment based on the same issues as previous assessments.
5. Use of information from the Investigation Wing and audit objections for reopening the assessment.
6. Reopening of assessment after four years.

Issue-Wise Detailed Analysis:

1. Validity of the Reopening of Assessment under Section 147:
The reopening of assessment by the Assessing Officer (AO) was challenged by the assessee on the grounds that the assessment was reopened on the same issues that were the subject matter of earlier assessments, which were quashed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) held that reopening on the same grounds was bad in law, citing several judgments, including those of the Punjab & Haryana High Court and the Madras High Court, which held that reassessment on identical facts is not permissible once the earlier reassessment has been annulled.

2. Compliance with Notice under Section 148:
The assessee complied with the notice issued under Section 148 by filing a letter requesting the AO to treat the original return filed under Section 139 as the return in response to the notice under Section 148. The CIT(A) found this to be sufficient compliance, referencing Rule 12 of the Income Tax Rules and various judicial precedents, including the Allahabad High Court's decision in Anand Kumar Sharma and the Delhi High Court's decision in Jai Shiv Shankar Traders Pvt. Ltd.

3. Requirement of Issuing Notice under Section 143(2):
The CIT(A) noted that no notice under Section 143(2) was issued within the prescribed time after the assessee filed the return in response to the notice under Section 148. Citing the Supreme Court's decision in Hotel Blue Moon, the CIT(A) held that the failure to issue a notice under Section 143(2) rendered the assessment bad in law.

4. Reassessment Based on the Same Issues as Previous Assessments:
The CIT(A) observed that the reassessment was initiated on the same grounds as the previous assessments, which were quashed. The CIT(A) cited several judgments, including those of the Punjab & Haryana High Court and the Madras High Court, which held that reassessment on the same issues that were previously annulled is not permissible.

5. Use of Information from the Investigation Wing and Audit Objections for Reopening the Assessment:
The CIT(A) held that the AO's reliance on information from the DGIT (Investigation) and audit objections without independent application of mind was not valid for reopening the assessment. The CIT(A) cited the Supreme Court's decision in Indian & Eastern Newspaper Society, which held that audit objections cannot be the sole basis for reopening an assessment.

6. Reopening of Assessment After Four Years:
The CIT(A) held that the reopening of the assessment after four years was not justified as there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The CIT(A) cited several judgments, including those of the Allahabad High Court and the Bombay High Court, which held that reopening after four years requires a failure to disclose material facts, which was not the case here.

Conclusion:
The CIT(A) held the reopening of assessment by the AO as bad-in-law on three separate counts and cancelled the assessment made under Section 144/147. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's appeal and the assessee's Cross Objection as infructuous. The Tribunal found no merit in the Revenue's appeal, noting that the reopening was challenged on multiple grounds, and the Revenue had only contested one. Consequently, both the Revenue's appeal and the assessee's Cross Objection were dismissed.