2018 (3) TMI 583 - AT - Income Tax

Reopening of assessment u/s 147/148 - accommodation entries - non independent application of mind by AO - Held that - AO while recording reasons has failed to apply his mind and has merely referred to the report of the Investigation Wing. The least that was required by the Assessing Officer was to establish a link between the information made available by the Investigation Wing and the formation of his belief on escapement of income, which is clearly absent in the present case In the reasons recorded there is no details of the transaction and a bald reference to entries amounting to ₹ 46,12,826/- has been made. Even when the assessee pointed out to AO in its reply dated 7/11/2012, about the incorrectness of the purchases stated at ₹ 46,12,826/- as against actual purchase of ₹ 1,44,405/-, no credible negation has been brought out by the Assessing Officer. At the time of recording of reasons even the minimum required application of mind was absent, which obligated the Assessing Officer to establish a crucial link between the information made available to him and his belief about escapement of income. Therefore, the initiation of reassessment proceedings u/s 147/148 of the Act in the present case is without application of appropriate mind and, thus, untenable in law. - Decided in favour of assessee.

Summary

Issues Involved:
1. Violation of principles of Natural Justice.
2. Legality of reopening the assessment under section 147/148 of the Income Tax Act, 1961.
3. Addition under section 69 of ? 43,43,282/- on alleged Accommodation Entries.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant contended that the CIT(A) erred by not addressing the grounds related to the violation of principles of natural justice. It was argued that the Assessing Officer (AO) used evidence against the assessee without providing copies of the statements of Mr. Mukesh Choksi, which were the basis for reopening the assessment. The appellant was not given an opportunity for cross-examination, thus violating the principles of natural justice.

2. Legality of Reopening the Assessment:
The appellant challenged the reopening of the assessment under section 147/148 of the Act. The original return was accepted under section 143(1), and no new material or facts were presented to justify the reopening, making it a case of change of opinion. The AO did not provide the recorded reasons for reopening even till the completion of the assessment. The reopening was based on a third party's statement recorded during a search action under section 132 in the case of M/s. Mahasagar Securities Pvt. Ltd., which the appellant argued was insufficient for reopening the assessment.

The Tribunal noted that the AO issued a notice under section 148 on 27/03/2012, reopening the assessment on the grounds of income escaping assessment. The reasons recorded for reopening were factually incorrect, as the appellant had not undertaken any share transactions through M/s. Gold Star Finvest Securities Pvt. Ltd., and the quantum of transactions was also incorrect. The AO failed to establish a link between the information from the Investigation Wing and the formation of belief about escapement of income. The Tribunal referenced similar cases where reopening was held invalid due to incorrect facts and lack of tangible material linking to the belief of income escapement.

3. Addition under Section 69 of ? 43,43,282/- on Alleged Accommodation Entries:
The appellant argued that the transactions were only ? 76,664/- and were supported by evidence shown in the balance sheet. The CIT(A) treated ? 43,43,282/- as unexplained investment without evidence and based on a third party's statement, which the appellant contended was incorrect. The appellant also pointed out that speculation profit of ? 1,87,125/- was shown and tax paid, hence the addition of ? 43,43,282/- should be deleted.

Conclusion:
The Tribunal found that the AO did not apply proper mind while recording reasons for reopening and failed to establish a crucial link between the information and the belief of income escapement. The initiation of reassessment proceedings under section 147/148 was deemed invalid and untenable in law. Consequently, the impugned assessment order was quashed, and the appeal was allowed. The necessity to address other grounds was obviated as they were rendered academic.

Similar Case:
For ITA No.2798/Mum/2014, the issues and grounds raised were similar to those in ITA No.2801/Mum/2014. Therefore, the decision in ITA No.2801/Mum/2014 applied mutatis mutandis to ITA No.2798/Mum/2014.

Final Order:
Both appeals were allowed, and the order was pronounced in the open court on 09/03/2018.