2018 (2) TMI 1640 - AT - Income Tax

Reopening of assessment - Non independent application of mind by AO - Held that - Unearthing of tangible/incriminating material against the assessee after completion of assessment u/s 143 (3) or after issuance of intimation u/s 143 (1) is sine qua non for issuance of the notice u/s 148 of the Act. In the instant case, the entire exercise of recording of reasons and issuance of notice u/s 148 is based upon the report received by the AO from Directorate of Income-tax (Inv.), hence the assessment in this case is not sustainable and is liable to be quashed. So, without going into the merits of the sustainability of the addition made by the AO, we hereby quash the assessment proceedings made by the AO and affirmed by the ld. CIT (A) and thereby allow the appeal filed by the assessee company.

Summary

Issues involved:
1. Treatment of share application moneys as undisclosed income.
2. Reopening of assessment under section 148 of the Income-tax Act.
3. Legal ground challenging the validity of reassessment proceedings.

Issue 1: Treatment of share application moneys as undisclosed income:
The appellant sought to set aside the order treating share application moneys from three Private Limited Companies as undisclosed income. The appellant argued that the moneys were received via account payee cheques and supported by Form No.2 before the Registrar of Companies. The appellant cited judgments from the Patna High Court and the Supreme Court to support their case. Additionally, the appellant highlighted previous judgments from the Delhi High Court and the Supreme Court affirming the Tribunal's decisions on similar cases. The appellant also pointed out an overlooked judgment from the Income Tax Appellate Tribunal in their own case for the assessment year 1999-2000. The CIT (A) upheld the Assessing Officer's stand, leading to the appellant's appeal.

Issue 2: Reopening of assessment under section 148 of the Income-tax Act:
The assessment for the year 2000-01 was reopened based on an investigation report regarding accommodation entries provided by an entry operator. The AO proposed reopening, issued notice under section 148, and found unexplained cash credit of ?12,50,000 from share application money. The appellant challenged the legality of the reassessment proceedings, arguing that there was no tangible material or proper satisfaction for reopening. The AO's reasons for reopening were based on the investigation report without any additional incriminating material from their own inquiry. The Tribunal found that the reopening was solely based on the investigation report, which was insufficient to sustain the reassessment proceedings.

Issue 3: Legal ground challenging the validity of reassessment proceedings:
The appellant raised a legal ground challenging the legality of the reassessment proceedings under section 148. The appellant contended that the reopening was invalid due to the absence of tangible material or proper satisfaction. The Tribunal examined the reasons recorded by the AO for reopening and found them solely based on the investigation report, lacking any incriminating material from the AO's own inquiry. Citing relevant judicial precedents, including decisions from the Delhi High Court and the Supreme Court, the Tribunal held that the absence of tangible material after completion of assessment proceedings rendered the reopening notice invalid. The Tribunal quashed the assessment proceedings and allowed the appeal filed by the assessee company.

This detailed analysis of the judgment covers the issues involved comprehensively, highlighting the arguments presented by the parties and the Tribunal's findings on each issue.