2015 (11) TMI 1815 - AT - Income Tax

Reopening of assessment u/s 147 - Whether there is no negligence on the part of the assessee? - HELD THAT - For reopening assessment within four years, it may not be necessary that there is negligence on the part of the assessee. What is necessary is to see whether any income of the assessee chargeable to tax escaped income. In this case, the AO came to a conclusion that there was reason to believe that the income otherwise chargeable to tax has escaped income since there was difference in the allotment of shares to the partners. This Tribunal is of the considered opinion that the Assessing Officer has rightly reopened the assessment. Since no opinion was expressed in the original assessment, it is not the question of change of opinion. Therefore, the CIT(Appeals) may not be correct in saying that the Assessing Officer has no jurisdiction to reopen the assessment. This Tribunal is of the considered opinion that as the Assessing Officer has rightly reopened the assessment, the CIT(Appeals) has to dispose the appeal on merit on the basis of the grounds raised before him. Accordingly, the order of the CIT(Appeals) is set aside. The appeal is remitted back to the file of the CIT(Appeals) - Appeal of the Revenue is allowed for statistical purposes.

Summary

Issues involved: Reopening of assessment under Section 147 of the Income-tax Act, 1961 for assessment year 2005-06.

Analysis:
1. Reopening of Assessment: The Revenue appealed against the order of the Commissioner of Income Tax (Appeals) regarding the reopening of assessment under Section 147 of the Income-tax Act, 1961. The Departmental Representative argued that the assessment for the year 2005-06 was reopened due to discrepancies in the shareholding pattern of partners when the partnership was converted into a company. The Assessing Officer had not considered this aspect during the original assessment, leading to the reopening of assessment under Section 148 within four years. The contention was that there was no change of opinion as the issue was not previously addressed, and negligence of the assessee was not a factor in this case. The CIT(Appeals) held that there was a change of opinion and the assessment should not have been reopened.

2. Assessee's Submission: The counsel for the assessee argued that all necessary details were provided during the original assessment, and the claim under Section 47(xiii) of the Act was allowed by the Assessing Officer. It was emphasized that the Assessing Officer did consider the shareholding details, even though not explicitly mentioned in the assessment order. Therefore, there was no basis for withdrawing the exemption under Section 47A(3) of the Act.

3. Tribunal's Decision: After considering both sides' submissions and the available record, the Tribunal concluded that the Assessing Officer had valid reasons to reopen the assessment due to discrepancies in the share allotment to partners. The Tribunal disagreed with the CIT(Appeals) on the change of opinion aspect and upheld the reopening of assessment within the four-year period. It was clarified that negligence on the part of the assessee was not a prerequisite for reopening assessment, but the focus should be on whether taxable income had escaped assessment. As the original assessment did not address the shareholding pattern issue, there was no question of a change of opinion. The Tribunal set aside the order of the CIT(Appeals) and remitted the appeal back for a merit-based disposal by the CIT(Appeals) based on the grounds raised by the assessee.

4. Conclusion: The Tribunal allowed the Revenue's appeal for statistical purposes, emphasizing the correctness of reopening the assessment under Section 147 and the need for a fresh consideration of the appeal by the CIT(Appeals) based on merit. The decision was pronounced on 20th November 2015 in Chennai.