2018 (5) TMI 247 - AT - Income Tax

Reopening of assessment - service of notice u/s. 148 by way of affixture and non-return of books impounded - Held that - As seen from the report of the ITI, the ITI records that the above address is the last known address given in the return of income for the AY. 2009-10 whereas proceedings are initiated for AY. 2009-10; which itself throws some doubt about veracity of the report of the ITI. Moreover even though there are two signatures of so called witnesses- neither their names nor their addresses have been placed on report, therefore, the veracity of the witnesses evidencing the service by affixture cannot be verified. The procedure followed by the AO to get the notices by way of affixture itself shows some doubt about the whole procedure. Unexplained investment - Held that - Since there is no basis for the disclosure of amount of ₹ 50 Lakhs, the same cannot be brought to tax, just because assessee has disclosed the same by way of letter. In view of that, we are not in a position to appreciate the addition made by the AO. - Decided in favour of assessee

Issues Involved:

1. Validity of assessment under Section 144 read with Section 147 based on an allegedly invalid notice under Section 148.
2. Timeliness of the assessment order under Section 153.
3. Proper procedure for service of notice under Section 148 by affixture.
4. Confirmation of income addition of ?50 lakhs based on a survey under Section 133A.
5. Validity of initiation of proceedings under Section 147 when proceedings under Section 142(1) were pending.

Issue-wise Detailed Analysis:

1. Validity of Assessment under Section 144 read with Section 147 Based on an Allegedly Invalid Notice under Section 148:
The assessee argued that the notice under Section 148 was invalid, rendering the assessment under Section 144 read with Section 147 null and void. The Tribunal found that the initiation of proceedings under Section 147 was inappropriate since the Assessing Officer (AO) had already initiated proceedings under Section 142(1) and could have completed the assessment under Section 144 based on the existing records. The Tribunal cited the Delhi High Court's judgment in CIT Vs. Sanjay Kumar Garg, which held that reassessment proceedings could not be initiated while the original assessment proceedings were still pending.

2. Timeliness of the Assessment Order under Section 153:
The assessee contended that the assessment order was made beyond the period provided under Section 153, relying on a notice served by affixture without following the proper procedure. The Tribunal agreed with the assessee, noting that the AO had not exhausted all other methods of service before resorting to affixture. The Tribunal emphasized that the proper procedure for service by affixture, as outlined in the Civil Procedure Code and departmental manuals, was not followed.

3. Proper Procedure for Service of Notice under Section 148 by Affixture:
The Tribunal found that the AO did not follow the prescribed procedure for service by affixture. The AO should have first attempted personal service and other means before resorting to affixture. The Tribunal highlighted that the Inspector's report lacked details such as names and addresses of witnesses, making the service by affixture questionable. The Tribunal referred to the Supreme Court's decision in Commissioner of Income Tax Vs. Ramendra Nath Ghosh, which invalidated similar service procedures.

4. Confirmation of Income Addition of ?50 Lakhs Based on a Survey under Section 133A:
The Tribunal noted that the AO had not linked the disclosed income to any specific unaccounted transactions or investments found during the survey. The Tribunal cited the Madras High Court's ruling in CIT Vs. M/s. S. Khader Khan Son, which held that mere disclosure without supporting evidence could not be taxed. The Tribunal found no basis for the ?50 lakhs disclosure and thus invalidated the addition.

5. Validity of Initiation of Proceedings under Section 147 When Proceedings under Section 142(1) Were Pending:
The Tribunal upheld the assessee's contention that initiating proceedings under Section 147 while Section 142(1) proceedings were pending was improper. The Tribunal referred to the Delhi High Court's judgment in KLM Royal Dutch Airlines Vs. Asst. Director of Income Tax, which stated that fresh reassessment proceedings could not be initiated while original assessment proceedings were still pending. The Tribunal concluded that the AO should have completed the assessment under Section 144 based on the existing records.

Conclusion:
The Tribunal allowed the assessee's appeal, setting aside the orders of the AO and CIT(A). The Tribunal found that the initiation of proceedings under Section 147 was improper, the service of notice by affixture was not conducted according to the prescribed procedure, and the addition of ?50 lakhs was unsupported by evidence. The Tribunal emphasized adherence to proper legal procedures and the necessity of linking disclosed income to specific evidence.

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