2019 (3) TMI 1932 - AT - Income Tax

Validity of reopening of assessment - reasons recorded by the AO based on incorrect fact - mistake in the reasons recorded - HELD THAT - In the case in hand, the AO himself as admitted the mistake in the reasons recorded and we find that it is not only mistake in the reasons recorded but the AO has also made the addition while passing the impugned assessment order on account of credit card bills U/s 69C . Subsequent explanation of the AO that this amount represents the cash deposit in the bank account will not remove the defects in the reasons recorded. Assessing Officer in the reasons recorded for reopening of the assessment was proposed to assess the income on account of unexplained expenditure incurred by the assessee which was also assessed to tax at the time of passing the reassessment order. Subsequently, the AO has come out with the explanation in the remand report that the amount represents the income on account of cash deposited in the bank account therefore, it is re-categorization of transaction from unexplained expenditure to cash deposit in the bank account CIT(A) has stated that in the notice issued U/s 142(1) of the I.T. Act the AO has mentioned the cash deposit in the bank account however, the AO finally made the addition on account of payment of credit card bills then the notices issued U/s 142(1) itself was not considered by the AO while making the addition. Even otherwise the notice issued U/s 142(1) would not substitute the reasons recorded by the AO. Accordingly,the amount which was proposed to assess the income by the AO in the reasons recorded is not actually represents the payment of credit card bills then, reopening based on the incorrect facts and non application of mind is not sustainable in law. - Decided in favour of assessee.

Summary

Issues:
Validity of reopening of assessment based on credit card bill payment and interest received in bank account.

Detailed Analysis:

Issue 1: Reopening of Assessment
The assessee, an individual, did not file the income tax return for the assessment year 2008-09. The Assessing Officer (AO) issued a notice under Section 148 of the Income Tax Act, 1961, based on information that the assessee paid a significant amount for credit card bills and received interest in the bank account. The AO completed the assessment and made additions totaling the mentioned amounts. The assessee challenged this action, arguing that they did not have a credit card, and the reasons for reopening were invalid. The AO, in a remand report, admitted the error but treated it as a clerical mistake. The assessee contended that the reasons for reopening must establish a live link to the belief of income escaping assessment, citing legal precedents. The AO's subsequent rectification in the remand report was deemed insufficient to correct the initial incorrect reasons for reopening.

Issue 2: Assessment Order
The AO passed an ex-parte assessment order, adding the amounts related to the alleged credit card bill payment and interest received. However, during the appellate proceedings, it was revealed that the AO accepted that there was no credit card payment but considered it as a cash deposit in the bank account. The AO's actions were found to be based on incorrect facts, as the reasons for reopening and the subsequent assessment did not align. Legal principles were cited, emphasizing that the reasons recorded for reopening must be clear, unambiguous, and based on evidence, with no room for subsequent explanations or amendments. The AO's failure to apply correct facts during reopening and reassessment rendered the process legally unsustainable.

Conclusion:
The Tribunal held that the reasons recorded by the AO for reopening the assessment were not based on correct facts, as the subsequent explanation did not rectify the initial error. The AO's actions lacked proper application of mind and failed to establish a live link between the reasons and evidence. Consequently, the reopening of the assessment was deemed invalid and unsustainable in law. As a result, the appeal by the assessee was allowed, and the reassessment order was quashed. The Tribunal did not delve into the merits of the addition due to the invalidity of the reopening.