2018 (3) TMI 1904 - AT - Income Tax

Reopening of assessment u/s 147 - protective addition - HELD THAT - AO had taken recourse to Section 148/147 mechanism which finally culminated in his assessment/re-assessment dt. 31-03-2014 making protective addition. We find in this clinching factual backdrop that the tribunal s co-ordinate bench s order in assessee s case itself for AY. 2007-08 involving 2020 (5) TMI 675 - ITAT HYDERABAD holds that such a re-opening making protective addition is not sustainable as per case law DHLF Venture Capital Fund 2013 (6) TMI 575 - BOMBAY HIGH COURT . We adopt the very reasoning herein mutatis mutandis to quash the impugned reopening. - Decided in favour of assessee.

Summary

Issues involved:
Appeal against CIT(A)'s order for AY 2006-07 under IT Act, 1961, involving substantive grounds including reopening of case u/s. 147, addition made by AO, contract work details, assessment based on third party statement, computation of capital gain, development agreement, and penalty u/s. 271(1)(c).

Analysis:

1. Reopening of the case u/s. 147:
The Assessing Officer (AO) reopened the case u/s. 147 without making any assessment u/s. 143 for AY 2006-07. The tribunal found that the AO's protective addition was not sustainable based on a previous judgment. The tribunal relied on the case law DHLF Venture Capital Fund Vs. ITO to quash the reopening. This rendered all other arguments on merits moot.

2. Addition made by AO:
The Ld. CIT(A) upheld the addition made by the AO in the assessment u/s. 143(3) r.w.s. 147 without considering all facts and circumstances. The appellant argued that the work of rock breaking and construction was on a contract basis due to restrictions on blasting in residential areas. The tribunal noted the appellant's explanation regarding manual work carried out and bills raised, emphasizing that the form of the bill should not be questioned.

3. Assessment based on third party statement:
The Ld. CIT(A) upheld the assessment order based on a third party sworn statement that was relied upon by the AO. The tribunal found this reliance erroneous and highlighted that the AO should not have calculated the cost of acquisition for computing Capital Gain without considering additional expenditures incurred for rock breaking and construction.

4. Development agreement and penalty u/s. 271(1)(c):
The appellant argued that the land given to the developer was for development based on rock breaking expenditure incurred before transferring the property through a development agreement. Additionally, the AO's imposition of penalty u/s. 271(1)(c) was contested, stating that no income was concealed during filing. The tribunal noted these arguments and emphasized the need for a comprehensive review of the AO's calculations and penalties imposed.

In conclusion, the tribunal allowed the appellant's appeal, primarily focusing on the unsustainable reopening of the case u/s. 147 and the need for a thorough assessment based on all relevant facts and legal provisions.