2018 (12) TMI 1457 - AT - Income Tax

Reopening of assessment - addition made u/s 68 - non production of directors in person of share holder companies - notice u/s 143(2) issued at same time and date of return filing u/s 148 - Held that - A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word necessary means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word necessarymust be construed in the connection in which it is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar).. which fits in present case fully. Guided by these felicitous observation we have no hesitation in our mind in accepting the legal plea raised by Ld AR before us and thus holding that notice u/s 143(2) issued at same time and date of return filing u/s 148 ( vide order sheet entry dated 27/04/2016) vitiates the entire exercise and accordingly all subsequent proceedings are held to be invalid in eyes of law and therefore we quash the orders passed by AO and CIT(A) and allow additional ground raised by assessee. We find that assessee has filed all evidences like share application form, board resolution confirming investment made, confirmation of share capital raised, Share certificate, income tax particulars of share holders, bank statement of share holders and form 2 for allotment of shares along with their audited final a/c in support of share capital recd. to establish its case - So we have no hesitation in accepting Ld AR s argument that for mere reason of non production of directors in person of share holder companies same cannot be a justified ground to draw adverse inference u/s 68 of the Act. - Decided in favour of assessee.

Issues Involved:
1. Jurisdiction of proceedings initiated under Section 148.
2. Validity of action under Section 148 based on allegations and tangible material.
3. Legality of initiation under Section 147 using search material from third parties.
4. Authority and jurisdiction for reassessment under Section 147.
5. Application of mind and approval under Section 151 for assessment under Section 147.
6. Compliance with the Supreme Court's procedure in GKN Driveshaft case.
7. Principles of equity, justice, and opportunity to defend, including cross-examination.
8. Addition of ?1,85,00,000 on account of alleged accommodation entry.
9. Confirmation of AO's order by CIT(A) on legal grounds and merits.
10. CIT(A)'s treatment of investigation wing information and AO's actions.
11. Assumptions about approval under Section 151 without actual correspondence.
12. Permission to file additional evidence for proper prosecution.
13. Permission to add or alter grounds of appeal.
14. Request to set aside the assessment and delete the addition.

Detailed Analysis:

1. Jurisdiction of Proceedings under Section 148:
The assessee challenged the initiation of proceedings under Section 148, arguing it was without jurisdiction. The Tribunal noted that the return filed in response to the notice under Section 148 was accepted by the AO, but the notice under Section 143(2) was issued on the same day, indicating non-application of mind.

2. Validity of Action under Section 148:
The action under Section 148 was contested as being based on bald allegations equated with tangible material. The Tribunal found that the AO relied solely on the investigation report without confronting the assessee with the back material, violating principles of natural justice.

3. Legality of Initiation under Section 147 Using Third-Party Search Material:
The initiation of action under Section 147 based on search material from the Jain brothers was deemed contrary to law. The Tribunal held that the AO acted on borrowed satisfaction without any independent application of mind.

4. Authority and Jurisdiction for Reassessment under Section 147:
The reassessment under Section 147 was challenged due to lack of incriminating material and proper jurisdiction. The Tribunal noted that the AO did not supply the back material to the assessee, which was requested multiple times, leading to a violation of natural justice.

5. Application of Mind and Approval under Section 151:
The assessment was argued to be unlawful due to lack of application of mind and lack of approval from the competent authority under Section 151. The Tribunal found that the notice under Section 143(2) was issued on the same day the return was filed, indicating non-application of mind.

6. Compliance with Supreme Court's Procedure in GKN Driveshaft Case:
The assessment was contested for not following the procedure laid down by the Supreme Court in the GKN Driveshaft case. The Tribunal noted that the AO did not confront the assessee with the investigation report or other back material, violating the procedure.

7. Principles of Equity, Justice, and Opportunity to Defend:
The assessment was argued to be bad in law for denying the assessee a proper opportunity to defend, including the supply of material relied upon and cross-examination of witnesses. The Tribunal found that the AO did not provide the requested back material, violating principles of natural justice.

8. Addition of ?1,85,00,000 on Account of Alleged Accommodation Entry:
The addition was contested as being based on conjectures and surmises. The Tribunal noted that the assessee provided voluminous evidence to prove the identity, creditworthiness, and genuineness of the share capital received, which the AO ignored.

9. Confirmation of AO's Order by CIT(A):
The CIT(A) confirmed the AO's order on legal grounds and merits. The Tribunal found that the CIT(A) also failed to consider the assessee's submissions and evidence objectively.

10. CIT(A)'s Treatment of Investigation Wing Information:
The CIT(A) was argued to have treated the investigation wing's information as sacrosanct without examining the seized material. The Tribunal held that the CIT(A) did not make any independent efforts to verify the information.

11. Assumptions about Approval under Section 151:
The CIT(A) was argued to have assumed approval under Section 151 without actual correspondence. The Tribunal found no evidence of proper approval being obtained.

12. Permission to File Additional Evidence:
The assessee sought permission to file additional evidence for proper prosecution. The Tribunal admitted the additional ground raised by the assessee, being purely legal in nature.

13. Permission to Add or Alter Grounds of Appeal:
The assessee sought permission to add or alter grounds of appeal. The Tribunal allowed the additional ground and quashed the assessment on the basis of non-application of mind in issuing the notice under Section 143(2).

14. Request to Set Aside Assessment and Delete Addition:
The assessee requested to set aside the assessment and delete the addition of ?1,85,00,000. The Tribunal allowed the appeal, quashing the assessment and deleting the addition.

Conclusion:
The Tribunal quashed the reassessment proceedings and deleted the addition of ?1,85,00,000, finding multiple procedural lapses, non-application of mind, and violation of principles of natural justice by the AO and CIT(A). The appeal of the assessee was allowed.

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