2018 (8) TMI 1371 - HC - Income Tax

Reassessment of a case beyond 6 years - directions were issued u/s 150(1) - fulfillment of per-conditions for opening a case - Addition of income u/s 2(24)(iv) - Protective assessment - Held that - It is not disputed by the parties that the extended period of limitation as it were, for issuing re-assessment notices under Section 147/148 of the Act, is spelt out in Section 149, i.e. six years provided the other jurisdictional conditions are fulfilled. There is, however, one exception to this absolute bar of limitation as it were Section 150. That provision is applicable in the case where the assessment of any entity or assessee is considered in Appeal or by the higher authority or Tribunal. In the present case, there is nothing on record to indicate that before the CIT(A) concluded that the amounts were properly assessable in the hands of the present petitioner/assessee, any notice/opportunity of hearing was not afforded to them. It, however, urges that opportunity would be available before the final assessment of such amounts in the hands of the present assessee is completed. We are of the opinion that the revenue s position is untenable; given the expressed mandate, the third explanation to Section 153(3) unequivocally postulates that any adverse order has to be proceeded by adequate opportunity of hearing to the concerned party. In this Court s opinion, although Section 153 enables and in some measure, empowers the Revenue to proceed and complete with assessments beyond the stipulated six year period, in the few exceptional circumstances indicated in the main proviso that empowerment is conditioned upon due exercise of power, i.e. after issuing notice and granting opportunity to the party likely to be affected adversely. Clearly that procedure is given the go-by in the present case. The directions issued by the CIT (A) contained in paragraph 11 insofar as it records adverse findings, is hereby quashed. In case, the CIT(A) wishes to proceed against the petitioner, he shall do so provided he shall issue appropriate notice in that regard.

Summary

Issues:
1. Validity of the impugned notice and order under Section 147/148 of the Income Tax Act, 1961.
2. Compliance with the provisions of Sections 150 and Section 153 of the Act.
3. Fulfillment of pre-conditions for re-opening concluded assessment for the Assessment Year 2009-2010.
4. Interpretation and application of Sections 150 and 153 in the context of the case.

Analysis:

Issue 1: Validity of the impugned notice and order under Section 147/148 of the Income Tax Act, 1961
The petitioners sought relief through a direction to quash the impugned notice and order dated 30.03.2017 and 02.05.2017 under Section 147/148 of the Act. The Commissioner of Income Tax formed an opinion that certain additions should be taxed in the hands of the petitioners based on findings related to share holdings. The court examined the arguments presented by both parties and concluded that the directions issued by the CIT (A) containing adverse findings were quashed. The court emphasized the necessity of issuing appropriate notice before proceeding against the petitioners.

Issue 2: Compliance with the provisions of Sections 150 and Section 153 of the Act
The court analyzed Sections 150 and 153 of the Act in detail. Section 150 allows for the issuance of a notice under Section 148 for the purpose of making an assessment or reassessment based on findings or directions contained in an order passed by any authority in any proceeding under the Act. However, the court highlighted the importance of fulfilling the requirements of Explanation 3 to Section 153, which mandates providing an opportunity of being heard before recording findings that income should be held by another person. The court cited previous judgments to support its interpretation of these provisions.

Issue 3: Fulfillment of pre-conditions for re-opening concluded assessment for the Assessment Year 2009-2010
The petitioners argued that the pre-conditions for re-opening the concluded assessment for the Assessment Year 2009-2010 were not fulfilled as the requirement of issuing notice and hearing was not complied with by the Appellate Commissioner. The court examined the arguments and found that the omission of providing an opportunity of hearing before adverse findings were recorded was fatal to the attempt to re-open the assessment.

Issue 4: Interpretation and application of Sections 150 and 153 in the context of the case
The court delved into the interpretation and application of Sections 150 and 153 in the context of the case. It emphasized the need for adequate opportunity of hearing before proceeding with adverse orders, as mandated by the provisions. The court concluded that the revenue's position was untenable and quashed the adverse findings recorded by the CIT (A), directing that appropriate notice should be issued if further proceedings were to be pursued.

In conclusion, the court partially allowed the writ petitions, quashing the adverse findings and emphasizing the importance of providing an opportunity of hearing before adverse orders are passed. The judgment clarified the procedural requirements and conditions for re-assessment under the Income Tax Act, ensuring compliance with legal provisions and principles of natural justice.