2016 (4) TMI 1395 - AT - Income Tax

Reopening of assessment u/s 147 - eligibility of reasons to believe - HELD THAT - Under the substituted section 147 existence of only the first condition suffices - if the AO for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is, however, to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso. Ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 of the Act. While issuing the notice u/s.148 of the Act, for the purpose of reopening of assessment, the final outcome of the proceedings is not relevant and at the initial stage, what is required is reason to believe but not established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief, whether the material would conclusively approve the escapement is not the concerned, at the time of reopening of the assessment. AO has not required to establish by conclusive evidence that the issue raised in reopening assessment would be calculated with the addition of income in reassessment order. Issue of notice u/s.148 of the Act, for the purpose of reopening of assessment u/s.147 of the Act is based on material available before the Assessing Officer in respect of undisclosed bank account in foreign countries so as to believe that the income was escaped from the assessment, while framing the original assessment. Hence, reopening of assessment is valid. - Decided against assessee.

Summary

Issues Involved:
1. Validity of reopening of assessments for AY 2006-07 and 2007-08.
2. Justification for additions made towards deposits in undeclared HSBC Bank accounts.

Issue-wise Detailed Analysis:

1. Validity of reopening of assessments for AY 2006-07 and 2007-08:

The assessee, who traded in shares and mutual funds, filed returns for AY 2006-07 and 2007-08. The assessments were reopened based on information from the Investigation Wing indicating that the assessee operated an undeclared HSBC Bank account in Switzerland and carried out unaccounted transactions during the relevant fiscal years. Notices under section 148 were issued, and subsequent assessments were completed.

The assessee challenged the reopening, arguing that the reasons recorded did not explicitly state that the AO had a "reason to believe" that income had escaped assessment. The assessee contended that the reopening was based on inconclusive and unverified information from the Investigation Wing, and no independent enquiries were conducted by the AO.

The Tribunal upheld the reopening of assessments, stating that section 147 authorizes the AO to assess or reassess income if there is "reason to believe" that income has escaped assessment. The phrase "reason to believe" means cause or justification, not necessarily conclusive evidence. The Tribunal cited several Supreme Court judgments, including Raymond Woollen Mills Ltd. v. ITO and ITO v. Selected Dalurband Coal Co. (P) Ltd., which support the notion that the AO's belief at the initiation stage does not require established facts of escapement.

The Tribunal concluded that the reopening of assessments was valid as the AO had relevant material (information from the Investigation Wing) to form a reasonable belief that income had escaped assessment.

2. Justification for additions made towards deposits in undeclared HSBC Bank accounts:

The AO made additions towards deposits in the undeclared HSBC Bank accounts, which the assessee contested. The assessee argued that the alleged credits in the bank account did not necessarily represent fresh deposits made during the year and that the AO did not provide a copy of the bank account to the assessee. The assessee also claimed that no amounts were deposited after 2006 and offered to pay tax on the balance in 2011 as income for AY 2012-13, conditional upon no penal or prosecution proceedings being initiated.

The Tribunal noted that the AO had information from the CBDT about unaccounted deposits in the HSBC Bank account, which justified the additions. The Tribunal emphasized that the AO's role is to administer the statute with fairness to taxpayers while protecting the public exchequer. The Tribunal found that the AO had sufficient material to form a reasonable belief that income had escaped assessment and that the reopening of assessments was based on this material.

The Tribunal dismissed the assessee's appeal, confirming the reopening of assessments and the additions made towards the undeclared HSBC Bank account deposits.

Conclusion:
The Tribunal upheld the validity of reopening the assessments for AY 2006-07 and 2007-08 based on information from the Investigation Wing about undeclared HSBC Bank accounts. The Tribunal also justified the additions made towards deposits in these accounts, dismissing the assessee's appeal. The reopening of assessments was deemed valid as the AO had sufficient material to form a reasonable belief that income had escaped assessment.