2019 (10) TMI 930 - HC - Income Tax

Scope of assessment in the remand back proceedings - addition under the head Short Term Capital Gains other than under Section 111A - HELD THAT - Assessing Officer in this case has traveled beyond the scope of the remand order of the Tribunal and reconsidered the issues with regard to the income from Short Term Capital Gains under Section 111A and Brought/forward losses of previous assessment years and thus, exceeded his jurisdiction over and above the issue which was remanded. Assessing Officer himself has enlarged the scope of the remand without confining himself to the issue which was remanded by the Tribunal. As rightly pointed out by the petitioner under the guise of passing fresh order in pursuant to the order of remand, AO has in effect reopened the uncontested issues and passed fresh order on those issues as well, which were not the intent of the Tribunal, while remitting the matter back to the AO. As rightly pointed out by the learned counsel for the petitioner, what the AO could not have achieved by reopening the assessment under Section 148 in view of lapse of time, sought to achieve the same under the guise of passing fresh order of assessment in pursuant to the remand by the Tribunal. Certainly, the above act of the AO is impermissible under law and consequently, cannot be justified or sustained. No doubt, the learned counsel for the Revenue contended that all the issues are interlinked. No pleading to that effect in the counter filed herein or advancement of argument before the Tribunal. Hence, such contention is liable to be rejected. Thus, this Court is of the view that the assessment made by the Assessing Officer in respect of those two issues viz., income from Short Term Capital Gains under Section 111A and Brought/Forward losses for the assessment years 2006-2007 to 2009-2010 cannot be sustained as valid in law, since such exercise was beyond the scope of the order of remand. While considering the issue which was agitated by the Assessee before the Appellate forums viz., Income from Short Term Capital Gains other than under Section 111A and consequential addition of ₹ 25,05,304/- is concerned, it is the specific case of the petitioner that the Assessing Officer has changed the head from Short Term Capital Gains to Undisclosed Sources under Section 68 , without putting the petitioner on notice and hearing them. It is not in dispute that before passing the impugned order, the petitioner was not put on notice and given an opportunity of hearing as well. Since it is seen that the disputed addition of ₹ 25,05,304/- was reiterated by the Assessing Officer, however, taxing the same as income on a different head viz., from Undisclosed Sources under Section 68, instead of Short Term Capital Gains other than one under Section 111A, without issuing notice to the petitioner to that effect, this Court is of the view that the said issue can be considered by the Assessing Officer once again, however, by putting the petitioner on notice. Matter is remitted back to the Assessing Officer to redo the assessment only in respect of the issue relegated by the Tribunal while remitting the matter viz., income from Short Term Capital Gains other than under Section 111A and consequential addition after giving a notice and an opportunity of hearing to the petitioner.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer post-remand.
2. Principles of natural justice.
3. Scope of remand order by the Tribunal.
4. Reassessment of uncontested issues.
5. Change of income head without notice.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer Post-Remand:
The petitioner challenged the assessment order dated 31.12.2018, arguing that the Assessing Officer exceeded his jurisdiction by expanding the scope of the remand order from the Income Tax Appellate Tribunal. Initially, the Tribunal remanded the case to the Assessing Officer solely to re-adjudicate the addition of ?25,05,304/- as Short Term Capital Gains. However, the Assessing Officer not only reconsidered this issue but also reassessed other heads of income, including Short Term Capital Gains under Section 111A and Brought/Forward losses, which were not part of the Tribunal's remand order. The court found that the Assessing Officer exceeded his jurisdiction and acted beyond the scope of the remand order.

2. Principles of Natural Justice:
The petitioner contended that the Assessing Officer violated the principles of natural justice by not providing a notice or an opportunity for a personal hearing before passing the impugned order. The court agreed, noting that the Assessing Officer changed the head of income from Short Term Capital Gains to Undisclosed Sources under Section 68 without notifying the petitioner. This lack of notice and hearing constituted a violation of natural justice principles, warranting the writ petition's maintainability.

3. Scope of Remand Order by the Tribunal:
The Tribunal's remand was specifically for re-adjudicating the addition of ?25,05,304/- as Short Term Capital Gains due to client code modifications. The court observed that the Assessing Officer's reconsideration of other issues, such as Short Term Capital Gains under Section 111A and Brought/Forward losses, was beyond the Tribunal's remand scope. The court cited several precedents, including S.P. Kochhar vs. Income Tax Officer and Saheli Synthetics P. Ltd. vs. CIT, to support the principle that the Assessing Officer's jurisdiction post-remand is confined to the subject matter of the appeal before the Tribunal.

4. Reassessment of Uncontested Issues:
The court found that the Assessing Officer improperly reopened and reassessed issues that were not contested by the petitioner or the Revenue before the appellate authorities. The original assessment had accepted the petitioner's income from Short Term Capital Gains under Section 111A and Brought/Forward losses. By reconsidering these uncontested issues, the Assessing Officer acted beyond his jurisdiction, rendering the reassessment invalid.

5. Change of Income Head Without Notice:
The petitioner argued that the Assessing Officer changed the classification of ?25,05,304/- from Short Term Capital Gains to income from Undisclosed Sources under Section 68 without providing notice. The court held that this change without notice violated the principles of natural justice. Consequently, the court directed the Assessing Officer to re-adjudicate this specific issue after giving notice and an opportunity for a hearing to the petitioner.

Conclusion:
The court allowed the writ petition, setting aside the impugned assessment order. The matter was remitted back to the Assessing Officer to redo the assessment solely concerning the issue remanded by the Tribunal, i.e., the addition of ?25,05,304/- as Short Term Capital Gains, after providing notice and a hearing opportunity to the petitioner. The Assessing Officer was instructed to complete this process within six weeks.