2016 (9) TMI 1591 - AT - Income Tax

Reopening of assessment u/s 147 - validity of reasons to believe - non independent application of mind by AO - HELD THAT - After going through the reasons recorded by the AO - HELD THAT - AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year - Reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. AO has mechanically issued notice u/s. 148 of the Act on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation) New Delhi. Thus the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of assessee.

Summary

Issues Involved:
1. Assumption of jurisdiction under Section 148 of the Income Tax Act, 1961.
2. Validity of material for assuming jurisdiction under Section 147.
3. Reason to believe that income chargeable to tax had escaped assessment under Section 147.
4. Foundation of reasons for reopening based on suspicion.
5. Addition of share application money under Section 68.
6. Addition of estimated commission under Section 68.

Detailed Analysis:

1. Assumption of Jurisdiction Under Section 148:
The Assessee contested that the assumption of jurisdiction under Section 148 of the Income Tax Act, 1961, was without authority of law and void. The Tribunal examined the reasons recorded by the Assessing Officer (AO) for reopening the case. It was found that the AO had not applied his mind independently and had issued the notice based on information from the Directorate of Income Tax (Investigation). The Tribunal concluded that the reasons were vague and not based on any tangible material, thus quashing the reassessment proceedings.

2. Validity of Material for Assuming Jurisdiction Under Section 147:
The Assessee argued that the AO had no valid material to assume jurisdiction under Section 147, making the reasons framed null, void, and bad in law. The Tribunal noted that the AO relied solely on information from the Investigation Wing without any independent verification or application of mind. The Tribunal found that the AO's reasons were based on suspicion rather than concrete evidence, thus invalidating the reopening of the assessment.

3. Reason to Believe Under Section 147:
The Assessee claimed there was no reason to believe that income chargeable to tax had escaped assessment, as required under Section 147. The Tribunal observed that the AO's reasons lacked specificity and were not supported by tangible material. The Tribunal cited the Delhi High Court's decision in the case of Pr. CIT vs. G&G Pharma India Ltd., which emphasized that the AO must apply his mind to the materials to form a reason to believe that income had escaped assessment. The Tribunal concluded that this requirement was not met in the present case.

4. Foundation of Reasons Based on Suspicion:
The Assessee contended that the reasons for reopening were based on suspicion, which cannot form the foundation for reopening under Section 147. The Tribunal agreed, noting that the AO's reasons were vague and lacked concrete evidence. The Tribunal emphasized that reopening based on mere suspicion is not permissible under the law, thus quashing the reassessment proceedings.

5. Addition of Share Application Money Under Section 68:
The Assessee challenged the addition of ?27,50,000 (AY 2006-07) and ?20,00,000 (AY 2009-10) as share application money under Section 68. The Tribunal did not delve into this issue in detail, as it had already quashed the reassessment proceedings on jurisdictional grounds. However, it noted that the AO's reasons for the addition were not substantiated by concrete evidence.

6. Addition of Estimated Commission Under Section 68:
The Assessee also contested the addition of estimated commission of ?68,750 (AY 2006-07) and ?50,000 (AY 2009-10) under Section 68. Similar to the share application money, the Tribunal did not address this issue in detail due to the quashing of the reassessment proceedings. The Tribunal reiterated that the AO's reasons were based on suspicion and lacked concrete evidence.

Conclusion:
The Tribunal quashed the reassessment proceedings for both assessment years (2006-07 and 2009-10) on the grounds that the AO had not applied his mind independently and had issued the notice based on vague and unsubstantiated information. Consequently, the Tribunal allowed the Assessee's appeals and did not address the other issues in detail, as they were rendered academic by the quashing of the reassessment proceedings.