2018 (7) TMI 1617 - AT - Income Tax

Reopening of assessment - addition u/s 68 - non independent application of mind by AO - borrowed knowledge - Held that - AO has merely relied on the report of the investigation wing but it is apparent that he has not applied his mind to the materials which were before him. In our view, without forming a prima facie opinion only on the basis of the report of the Investigation Wing of the Income Tax Department, it was not legal for the AO to have simply concluded that he has reason to believe that income chargeable to tax has escaped assessment. Unless the basic jurisdictional requirement is satisfied, a post mortem exercise of analysing materials produced subsequent to the reopening will not rescue an inherently defective reopening order from invalidity. In the circumstances and respectfully following the judgment of the Hon ble High Court of Delhi in the case of Pr. Commissioner of Income Tax-4 vs. G&G Pharma India Ltd. (2015 (10) TMI 754 - DELHI HIGH COURT) we hold that the reopening of the case of the assessee for the assessment year is bad in law. In the circumstances, we quash the reassessment proceedings. - decided in favour of assessee

Issues Involved:
1. Validity of re-assessment proceedings initiated under Sections 147/148 of the Income Tax Act, 1961.
2. Deletion of addition amounting to ?1,62,80,585/- made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961.
3. Sustenance of addition to the extent of ?12,21,044/- by the CIT (A).
4. Charge of interest under Section 234B of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Validity of Re-assessment Proceedings:
The assessee challenged the initiation of re-assessment proceedings on the grounds that the AO did not examine the original return or other material on record when issuing the notice under Section 148. The AO relied solely on information from the Investigation Wing, failing to specify what material facts were not declared by the assessee, leading to income escaping assessment. The Tribunal found that the AO had not applied his mind independently and had mechanically issued the notice based on the Investigation Wing's report. Citing the Delhi High Court's judgment in the case of Pr. Commissioner of Income Tax -4 vs. G&G Pharma India Ltd., the Tribunal emphasized that the AO must apply his mind to the information and form a belief thereon. The Tribunal concluded that the re-assessment was not legally sustainable and quashed the proceedings.

2. Deletion of Addition of ?1,62,80,585/-:
The department appealed against the CIT (A)'s order, which deleted the addition of ?1,62,80,585/- made by the AO under Section 68. The AO had added this amount as unexplained credit entries in the assessee's bank account, which the assessee allegedly failed to fully explain. The CIT (A) had restricted the addition to ?12,21,044/-, considering it as commission/brokerage at 7.5% of the total cash deposits. The Tribunal, having quashed the re-assessment proceedings, did not adjudicate on the merits of this addition, rendering the department's appeal infructuous.

3. Sustenance of Addition to the Extent of ?12,21,044/-:
The assessee also appealed against the CIT (A)'s decision to sustain the addition of ?12,21,044/-. The Tribunal, having quashed the re-assessment proceedings, did not find it necessary to address this issue, as it became academic in nature.

4. Charge of Interest under Section 234B:
The assessee challenged the charge of interest under Section 234B, arguing that it lacked a legal basis in the context of re-assessment under Section 147. The Tribunal did not specifically address this issue, as the primary focus was on the validity of the re-assessment proceedings.

Conclusion:
The Tribunal allowed the assessee's appeal, quashing the re-assessment proceedings as invalid. Consequently, the department's appeal was dismissed as infructuous. The Tribunal's decision was pronounced in the open court on 23rd July 2018.

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