2018 (9) TMI 1617 - AT - Income Tax

Reopening the assessment u/s 147 - addition of cash credit - Held that - When the same AO repeated the addition of cash credit in the set aside proceedings in case of M/s. Rasal Builders and Developers Pvt. Ltd. vide order dated 06.12.2010 the reopening after the order of ld. CIT (A) is nothing but based on the satisfaction of the ld. CIT (A). AO reaffirming its stand in the case of M/s. Rasal Builders and Developers Pvt. Ltd. in two rounds of proceedings cannot be allowed to resort to provisions of section 148 when his stand was reversed by the ld. CIT (A) in the second round of litigation. What the AO failed to do on his own cannot be done on the basis of the order of the appellate authority in the case of other assessee. The notice issued u/s 148 was only after receiving the letter dated 23rd September 2011 and therefore the reopening is only in compliance of the said letter and not based on the opinion and independent application of mind of the AO. We set aside and quash the reopening of the assessment being not sustainable in law and consequently the reassessment order is set aside. - Decided in favour of assessee

Summary

Issues:
1. Validity of reopening of the assessment under section 147 of the Income Tax Act, 1961.
2. Addition of Rs. 10,18,358/- as unexplained cash credit under section 68 of the Income Tax Act, 1961.

Issue 1: Validity of Reopening of Assessment

The appellant, engaged in trading of sprinkler systems, challenged the reopening of assessment under section 147 by the Assessing Officer (AO) for the assessment year 2005-06. The AO reopened the assessment based on the communication from the ld. CIT (A) in the case of another entity, M/s. Rasal Builders and Developers Pvt. Ltd. The appellant argued that the reopening was based on borrowed satisfaction and not the AO's independent belief of escaped income. The appellant cited legal precedents to support the argument that the AO must independently form a belief of escaped income and cannot rely solely on another authority's opinion. The AO, however, contended that the reasons for reopening were independently recorded and not solely based on the communication from the ld. CIT (A). The Tribunal analyzed the facts, noting that the AO's decision to reopen was influenced by the communication from the ld. CIT (A) and not solely based on independent assessment. The Tribunal held that the reopening was not sustainable in law as it was based on borrowed satisfaction, leading to the quashing of the reassessment order.

Issue 2: Addition of Rs. 10,18,358/- as Unexplained Cash Credit

The AO made an addition of Rs. 10,18,358/- as unexplained cash credit under section 68 of the Income Tax Act, 1961. This addition was related to a loan given by the appellant to M/s. Rasal Builders and Developers Pvt. Ltd. The AO's decision was based on the cash deposit in the appellant's bank account before providing the loan. The ld. CIT (A) confirmed this addition, leading to the appellant challenging this decision in the appeal. However, since the Tribunal quashed the reopening of the assessment in Issue 1, the Tribunal declared Issue 2 regarding the addition of unexplained cash credit as infructuous. Consequently, the appeal of the appellant was allowed.

In conclusion, the Tribunal ruled in favor of the appellant by setting aside the reassessment order due to the invalidity of the reopening of the assessment. As a result, the issue of the addition of unexplained cash credit became infructuous, leading to the allowance of the appellant's appeal.