2020 (2) TMI 456 - AT - Income Tax

Reopening of assessment u/s 147 - addition u/s 68 - HELD THAT - AO, based on mere suspicion regarding the genuineness of sources of investment, is of the opinion that the said amount has escaped to the assessment. There is no prima-facie reason for the Assessing Officer to come to that line of the reason to believe about the concealed income. In our opinion, it is a case of issuing notice u/s 147 of the Act for conducting roving enquiries and without having any tangible material that works as a live wire . Considering the above decision of the Tribunal 2019 (11) TMI 211 - ITAT PUNE Assessing Officer was not justified in taking recourse to the provisions of section 147 of the Act and therefore, the initiation of reassessment proceedings are not in accordance with law. Therefore, following the rule of consistency, I set-aside the initiation of reassessment proceedings and the consequential assessment. Thus, the legal ground raised by the assessee by way of ground no.1 is allowed.

Issues Involved
1. Validity of reopening of assessment under Section 147 of the Income Tax Act.
2. Treatment of business income as income from undisclosed sources.
3. Applicability of Section 68 for loans given and received.
4. Specific additions made under Section 68 for various loans.

Detailed Analysis

1. Validity of Reopening of Assessment Under Section 147
The primary issue was whether the reassessment proceedings initiated under Section 147 were valid. The assessee argued that the reopening was based on mere suspicion and without tangible material. The Tribunal referred to a similar case in the assessee's own history (AY 2005-06 to 2007-08) where the reasons for reopening were identical and had been quashed. The Tribunal reiterated that the Assessing Officer (AO) must have a "reason to believe" that income had escaped assessment, not just a reason to verify. The Tribunal found that the AO's reasons were based on suspicion and intended to conduct a roving inquiry, which is not permissible under Section 147. Consequently, the reassessment proceedings were set aside as invalid.

2. Treatment of Business Income as Income from Undisclosed Sources
The assessee contested the CIT(A)'s decision to treat ?502,804 of business income as income from undisclosed sources. Given that the reopening itself was deemed invalid, the Tribunal did not delve into this issue further, rendering it moot.

3. Applicability of Section 68 for Loans Given and Received
The assessee challenged the additions made under Section 68 for loans given to Gajanan Sadashiv Koli and Jay Maharashtra Consumers Pvt. Ltd., arguing that Section 68 pertains to unexplained credits and not loans given. The Tribunal noted that the AO had accepted the taxable income shown in the return and that the loans were given out of this taxable income, making the application of Section 68 inappropriate. The Tribunal did not need to adjudicate this issue further due to the invalidity of the reassessment proceedings.

4. Specific Additions Made Under Section 68 for Various Loans
The Tribunal reviewed specific additions under Section 68 for loans received from Sunil Gidwani (HUF) and Meghna Gidwani. The assessee provided all necessary details and proofs during the assessment proceedings, and these loans were shown in the respective returns with taxes paid. The AO had no contrary evidence. However, since the reassessment proceedings were invalid, these specific additions were also not adjudicated further.

Conclusion
The Tribunal concluded that the reassessment proceedings initiated under Section 147 were invalid due to the lack of "reason to believe" and the presence of mere suspicion and intent to conduct a roving inquiry. Consequently, the Tribunal set aside the initiation of reassessment proceedings and the consequential assessment orders. The other grounds raised by the assessee were dismissed as academic since the primary issue of reassessment was resolved in the assessee's favor. Both appeals were partly allowed.

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