2020 (4) TMI 119 - AT - Income Tax

Reopening of assessment u/s 147 - no order has been passed by the AO deciding the objections filed by the assessee - HELD THAT - In Bayer Material Science (P.) Ltd. vs. DCIT (supra), it has been held, following GKN Driveshafts Pvt. Ltd. 2002 (11) TMI 7 - SUPREME COURT that it is incumbent on the Assessing Officer, when objections against the reasons recorded by the Assessing Officer for formation of belief of escapement of income, have been raised by the assessee, that the Assessing Officer needs must decided such objections by a specific separate order, disposing of the said objections. In case, the AO rejects the objections raised by the assessee, such a separate order would enable, following the principles of natural justice, an opportunity to the assessee, to challenge the said separate order before the competent Court. In General Motors (India) (P.) Ltd. vs. DCIT 2012 (8) TMI 714 - GUJARAT HIGH COURT it has been held that where no order has been passed by the AO deciding the objections filed by the assessee against notice issued under section 148 of the Act, or where such objections have been decided alongwith the assessment order, the notice issued u/s 148 of the Act deserves to be quashed. Accordingly, the assessment order passed by the Assessing Officer is reversed as null and void in the absence of separate specific order disposing of the assessee s objections against the reasons recorded. - Decided in favour of assessee.

Issues Involved:

1. Validity of the assessment order due to non-disposal of objections to reopening assessment.
2. Timeliness and legality of supplying reasons for reopening assessment.
3. Issuance of notice under Section 148 within the limitation period.
4. Applicability of Section 68 to a company that has not commenced business.
5. Addition of ?21,60,000/- under Section 68 based on identity, creditworthiness, and genuineness of the transaction.
6. Appropriateness of addition in the hands of the assessee company versus the actual owner of the money.
7. Validity of assessment order being barred by limitation and improper sanction under Section 151.
8. Confirmation of an illegal order of assessment based on conjectures and surmises.

Detailed Analysis:

1. Validity of the Assessment Order Due to Non-Disposal of Objections to Reopening Assessment:
The assessee argued that the assessment order should be quashed as the Assessing Officer (AO) did not dispose of the objections to the reasons recorded for reopening the assessment, violating the principles established in 'GKN Driveshafts Pvt. Ltd. vs. ITO and Others' and 'Bayer Material Science (P.) Ltd. vs. DCIT'. The Tribunal found that the AO failed to decide the objections by a separate speaking order before the assessment proceedings, which is a prerequisite as per the law. The Tribunal cited 'General Motors (India) (P.) Ltd. vs. DCIT', which mandates that the AO must decide the objections and communicate the decision to the assessee separately before proceeding with the reassessment. Consequently, the Tribunal accepted the assessee's grievance and declared the assessment order null and void due to the absence of a separate specific order disposing of the objections.

2. Timeliness and Legality of Supplying Reasons for Reopening Assessment:
The assessee contended that the reasons for reopening the assessment were supplied at the very end of the limitation period, leaving insufficient time to respond before the reassessment order was framed. The Tribunal did not specifically address this issue separately, as the decision on the first issue rendered the assessment order invalid.

3. Issuance of Notice under Section 148 within the Limitation Period:
The assessee claimed that the notice under Section 148 was not issued within the limitation period and alleged fabrication of documents by the Revenue. The Tribunal did not separately adjudicate this issue due to the nullification of the assessment order based on the first issue.

4. Applicability of Section 68 to a Company That Has Not Commenced Business:
The assessee argued that no addition could be made under Section 68 as the company had not commenced any business. This issue was not separately addressed by the Tribunal due to the overarching decision on the validity of the assessment order.

5. Addition of ?21,60,000/- under Section 68 Based on Identity, Creditworthiness, and Genuineness of the Transaction:
The assessee contested the addition of ?21,60,000/- received from subscribers of equity shares, asserting that the identity, creditworthiness, and genuineness of the transaction were established. The Tribunal did not specifically address this issue due to the invalidation of the assessment order.

6. Appropriateness of Addition in the Hands of the Assessee Company Versus the Actual Owner of the Money:
The assessee argued that the addition should have been made in the hands of the actual owner of the money, not the assessee company. The Tribunal did not separately adjudicate this issue due to the nullification of the assessment order.

7. Validity of Assessment Order Being Barred by Limitation and Improper Sanction under Section 151:
The assessee claimed that the assessment order was barred by limitation and that the sanction under Section 151 was improper. The Tribunal did not separately address this issue due to the overarching decision on the validity of the assessment order.

8. Confirmation of an Illegal Order of Assessment Based on Conjectures and Surmises:
The assessee argued that the assessment order was based on conjectures and surmises. This issue was not separately addressed by the Tribunal due to the nullification of the assessment order.

Conclusion:
The Tribunal found merit in the assessee's primary grievance regarding the non-disposal of objections to the reopening of the assessment. Consequently, the assessment order was declared null and void. Other issues raised by the assessee were not separately adjudicated as the primary issue's resolution rendered the assessment order invalid. The appeal was allowed, and the stay application was rejected as infructuous.

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