2011 (10) TMI 747 - AT - Income Tax

Reopening of Case u/s 147 - AO passed the assessment order u/s 147/143(3) without serving the mandatory notice u/s 148 as per law - HELD THAT - The reopening was also not done on account of change of opinion as prior to reopening of the assessment the case was only processed u/s 143(1). There is a live link between the information which was available with the AO and his formation of belief that income has escaped assessment. Sufficiency of such information cannot be gone into while deciding the issue of validity of reopening. The AO also cannot make any enquiry as no proceedings were pending before him for the relevant assessment year. In the above view of the matter, we are in agreement with the finding of the Ld CIT(A) that the reopening of assessment u/s 147 of the Act was valid. Income from unexplained source u/s 68 - AO did not accept the claim of the assessee that some amount was received by her as gift from donor as donor was never produced for examination, also relationship of donor with assessee was not proved. During re-opening assessee claimed that the copy of statement of Shri Deepak Gupta in which Shri Gupta allegedly admitted that bank account of donor was maintained and operated by him for providing bogus accommodation entry was never provided to the assessee and no opportunity to cross examine the said party was also provided. HELD THAT - Taking into consideration the facts that the case was reopened by issue of notice u/s 148 and the fact that the revenue has not produced any evidence that the statement of Shri Deepak Gupta was confronted to the assessee during the assessment proceedings, we deem it fit to set aside the orders of the authorities below on this issue and remit the matter back to the file of the AO with the direction that the assessee be given further opportunity to produce Shri Ashok Bindal and the assessee should also be given opportunity to cross examine Shri Deepak Gupta. A fresh order be passed as per law after complying with above directions of ours and giving the assessee adequate opportunity of being heard - Matter restored back

Summary

Issues Involved:
1. Validity of reopening assessment under Section 147 of the Income Tax Act.
2. Justification of the addition of Rs. 1,01,000/- under Section 68 of the Income Tax Act.
3. Charging of interest under Sections 234A, 234B, and 234C of the Income Tax Act.

Detailed Analysis:

1. Validity of Reopening Assessment under Section 147:
The assessee challenged the reopening of the assessment on the grounds that the Assessing Officer (AO) did not have valid reasons to believe that income had escaped assessment and that the reopening was done without proper application of mind. The AO had received information from the Directorate of Income Tax (Investigation) indicating that the assessee had taken a bogus accommodation entry of Rs. 1,01,000/-. The AO issued a notice under Section 148, which was served on the assessee. The assessee argued that the reasons for reopening were in a cyclostyled form, indicating a mechanical approach without proper application of mind. However, the Tribunal found that there was prima facie information available to the AO, and there was a live link between the information and the belief that income had escaped assessment. The Tribunal upheld the reopening of the assessment, stating that the sufficiency of information cannot be challenged and that the AO is not required to make further investigations before reopening.

2. Justification of the Addition of Rs. 1,01,000/- under Section 68:
The AO made an addition of Rs. 1,01,000/- as income from unexplained sources under Section 68, based on the claim that the amount was a gift from Shri Ashok Bindal. The assessee provided various documents, including an affidavit, PAN card, and bank statements of the donor. However, the AO noted discrepancies, such as the absence of the donor's relationship with the assessee and the failure to produce the donor for verification. The CIT(A) upheld the addition, stating that the assessee failed to prove the genuineness of the gift. The Tribunal observed that the assessee was not given an opportunity to cross-examine Shri Deepak Gupta, whose statement was used against the assessee. The Tribunal set aside the orders of the authorities below and remitted the matter back to the AO, directing that the assessee be given an opportunity to produce the donor and cross-examine Shri Deepak Gupta.

3. Charging of Interest under Sections 234A, 234B, and 234C:
The assessee did not argue this ground before the Tribunal. Therefore, the Tribunal did not adjudicate this issue.

Conclusion:
The Tribunal upheld the validity of reopening the assessment under Section 147. However, it set aside the addition of Rs. 1,01,000/- under Section 68 and remitted the matter back to the AO for fresh consideration, directing that the assessee be given an opportunity to produce the donor and cross-examine Shri Deepak Gupta. The issue of charging interest under Sections 234A, 234B, and 234C was not adjudicated due to lack of argument from the assessee. The appeal was allowed in part.