2017 (2) TMI 391 - AT - Income Tax

Validity of reopening of assessment - reopening based on borrowed satisfaction - Held that - It is notable that the present proceedings u/s. 147/148 have been initiated merely on the basis of information, inferences and enquiries made by other Assessing Officer, i.e., ITO 2(1) Meerut having jurisdiction over Nikhil Gupta, that too with respect to A.Y. 2005-06. The reasons recorded contain only the reference of the inferences drawn by other ITO as communicated vide letter dated 03.03.2007 whereas the assessment order for A.Y. 2005-06, on the basis of which such inferences were drawn by the said ITO, was passed on subsequent date on 30.03.2007. The reasons recorded do not contain even the date of its recording. The AO in the instant case has acted solely on the satisfaction of other Assessing Officer without recording his own satisfaction or without having any independent material to form a belief of escapement of income. Therefore, the initiation of proceedings u/s. 147/148 are vitiated, being based on borrowed satisfaction which is not sustainable in the eye of law. It is further notable that even the material on the basis of which the other Assessing Officer drew inferences against the assessee and communicated to the assessee s Assessing Officer, were not confronted to the assessee for rebuttal despite the assessee made specific request for the same. - Decided in favour of assessee

Summary

Issues:
Validity of action under section 147/148
Addition of gift amount as unexplained credit
Chargeability of penal interest under section 234B

Validity of action under section 147/148:
The appeal was filed against the order of the ld.CIT(A) upholding the applicability of section 147/148 for the assessment year 2003-04. The initiation of reassessment proceedings was challenged as being based on borrowed satisfaction of another Assessing Officer, ITO Ward 2(1), Meerut, who had jurisdiction over the minor son of the assessee. The reasons recorded for initiating the proceedings lacked essential details and were solely based on information from the other AO without the assessee being provided with the material for rebuttal. The Tribunal found that the action of the AO was unsustainable in law as it lacked independent material to form a belief of income escapement, as per relevant legal precedents. The reassessment proceedings were quashed on this legal aspect, and the appeal was allowed without delving into the merits of the addition. Relevant case laws and legal principles were cited to support this decision.

Addition of gift amount as unexplained credit:
The Assessing Officer made an addition of ?5,00,000 to the total income of the assessee as a bogus gift, based on information received from another AO regarding a similar addition in the case of the assessee's minor son. The ld. CIT(A) dismissed the appeal challenging the validity of reassessment proceedings and the addition. The Tribunal noted that the reassessment proceedings were initiated without the assessee being given the opportunity to produce the donor and its bank account, as required by the AO. The Tribunal found that the action of the AO in making the addition was unsustainable in law due to the lack of independent verification and proper reasoning. The Tribunal referenced legal decisions and principles to support the quashing of the reassessment proceedings, thereby allowing the appeal on this issue.

Chargeability of penal interest under section 234B:
The assessee contended that penal interest under section 234B should not be chargeable in a case of reassessment under section 147/148. However, since the reassessment proceedings were quashed on the grounds of being unsustainable in law, the Tribunal did not address the issue of penal interest chargeability separately. The appeal was allowed based on the invalidity of the reassessment proceedings, and no decision was rendered regarding the chargeability of penal interest. The Tribunal focused on the legal aspects of the case related to the initiation of proceedings and the addition made, rather than delving into the issue of penal interest separately.