2020 (9) TMI 1153 - AT - Income Tax

Validity of reopening of assessment - information is received by AO from the investigation wing - Addition u/s 68 - assessee was identified as one of beneficiaries who had received bogus/accommodation entries in the form of share capital by entry provider S.K Jain - HELD THAT - Merely using the expression failure on the part of the assessee to disclose fully and truly all material facts is not enough. The reasons must specify as to what is the nature of default or failure on the part of the assessee. Hon ble Bombay High Court in the case of Anand Developers 2020 (2) TMI 995 - BOMBAY HIGH COURT has held that a mere bald assertion by the AO that the assessee has not disclosed fully and truly all material facts is not sufficient. AO has to give details as to which fact or the material was not disclosed by the assessee leading to its income escaping assessment otherwise the reopening is not valid. We agree with the argument of assessee that the reason to believe that income has escaped assessment is not based on correct facts and the approval has been given in a mechanical manner and, therefore, such notice based on wrong facts and the approval given in a mechanical manner make the re-assessment proceedings invalid being not in accordance with law. Accordingly we hold that the reassessment proceedings initiated by the AO is not valid in the eyes of law. Accordingly the same is directed to be quashed. Since the assessee succeeds on this preliminary legal ground, the other legal grounds as well as the grounds on merit, in our opinion, do not require adjudication being academic in nature. Appeal filed by the assessee is allowed.

Issues Involved:
1. Validity of reassessment proceedings under section 147 of the Income Tax Act.
2. Service of notice under section 148.
3. Provision of reasons for reopening the assessment.
4. Application of mind by the Assessing Officer (AO) and Additional Commissioner of Income Tax (Addl. CIT).
5. Timeliness of the assessment order under section 153.
6. Addition of ?2,85,80,000 under section 68 of the Income Tax Act.
7. Charging of interest under section 234B.

Detailed Analysis:

1. Validity of Reassessment Proceedings under Section 147:
The AO initiated reassessment proceedings based on information from the Investigation Wing that the assessee received accommodation entries from Shri S.K. Jain and Shri Virendra Kumar Jain's controlled companies. However, the AO recorded that the assessee had not filed a return, which was incorrect as the return was filed on 31.03.2006 and processed under section 143(1) on 26.07.2006. The Tribunal found that the AO proceeded to reopen the assessment on incorrect facts, making the reassessment invalid.

2. Service of Notice under Section 148:
The assessee contended that the notice under section 148 was never served. The Tribunal observed that the AO's records indicated that the notice was sent via speed post, but there was no concrete evidence of service. The Tribunal held that the onus is on the Revenue to prove the service of the jurisdictional notice, failing which the assessment becomes invalid.

3. Provision of Reasons for Reopening the Assessment:
The AO did not provide the reasons for reopening the assessment to the assessee before completing the assessment. The Tribunal cited various judicial precedents, including GKN Driveshafts (India) Ltd. v ITO, which mandate that the reasons must be provided to the assessee. The failure to supply reasons vitiates the reassessment proceedings.

4. Application of Mind by AO and Addl. CIT:
The AO recorded reasons for reopening the assessment without verifying the return of income and audited balance sheet. The Addl. CIT approved the reopening mechanically without examining the proposal. The Tribunal cited several decisions, including Ankita A. Choksey vs. Income Tax Officer, holding that mechanical approval without application of mind invalidates the reassessment proceedings.

5. Timeliness of the Assessment Order under Section 153:
The assessment order was passed on 28.03.2013 but dispatched on 01.04.2013, beyond the statutory period of limitation. The Tribunal referred to the decision of the Hon’ble Gujarat High Court in Kanu Bhai M. Patel (HUF) vs. Hiren Bhatt, which held that the date of issue is the date it is handed over for service. Since the order was dispatched after the statutory period, the assessment was quashed.

6. Addition of ?2,85,80,000 under Section 68:
The AO made an addition of ?3,32,80,000 to the total income of the assessee, which the CIT(A) reduced to ?2,85,80,000. The CIT(A) held that the assessee failed to prove the identity, creditworthiness, and genuineness of the transactions related to the share application money. The Tribunal, however, did not adjudicate this issue as the reassessment itself was quashed on legal grounds.

7. Charging of Interest under Section 234B:
The assessee challenged the charging of interest under section 234B, arguing that it was not applicable. The Tribunal did not specifically address this issue as the reassessment was quashed.

Conclusion:
The Tribunal quashed the reassessment proceedings as invalid due to the AO's reliance on incorrect facts, mechanical approval by the Addl. CIT, and failure to provide reasons for reopening the assessment. Consequently, the other legal and merit-based grounds were deemed academic and not adjudicated. The appeal filed by the assessee was allowed.

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