2020 (4) TMI 527 - AT - Income Tax

Reopening of assessment - absence of any reason to believe that income had escaped assessment - no sufficient opportunity to the assessee for representing his case - HELD THAT - A.O. has not given sufficient opportunity to the assessee for representing his case. There is a lack of enquiry by the A.O. Even in the remand report, the A.O. has not made any enquiry from the subscriber companies. Assessee has brought to our notice that there are two assessment orders of the same date. No satisfactory reply is furnished by the A.O. There is no substantial difference between the assessment orders. One of the assessment order is having office note. Therefore, action of the A.O. regarding not making enquiries on the material and also not providing sufficient opportunity to the assessee, we set aside the assessment order and restore the assessment to the file of the A.O to dispose of the objections made against the reasons for reopening by way of a separate speaking order. - Decided in favour of assessee for statistical purposes.

Issues Involved:
1. Legality of reopening the assessment under sections 147/148 of the Income Tax Act.
2. Validity of the reassessment order in the absence of a speaking order disposing of objections.
3. Addition of ?1,64,00,000 of share premium money.
4. Non-service of letters under section 133(6) of the Income Tax Act.
5. Violation of the principle of natural justice by not giving adequate opportunity to the appellant.
6. Perversity in the CIT(A)'s order.
7. Interest levied under sections 234A, 234B, and 234C.
8. Initiation of penalty proceedings under section 271(1)(c)/274.

Issue-wise Detailed Analysis:

1. Legality of Reopening the Assessment:
The assessee contended that the reopening of the assessment for A.Y. 2009-10 was illegal as there was no fresh or tangible material to justify it. The original return filed on 23.09.2009 included the share premium amount of ?1,64,00,000, and the assessment was reopened based on proceedings for A.Y. 2012-13, which mentioned verification of the share premium. The Tribunal noted that the reasons recorded by the A.O. did not provide specific reasons for doubting the creditworthiness of the subscribers and the genuineness of the transactions, thus lacking fresh tangible information.

2. Validity of the Reassessment Order:
The assessee argued that the reassessment order was invalid as the A.O. did not pass a speaking order disposing of the objections to the reasons recorded, as mandated by the Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO. The Tribunal observed that the A.O. failed to address all objections raised by the assessee, and the CIT(A) also did not fully address these issues, thereby violating the procedure established by the Supreme Court.

3. Addition of ?1,64,00,000 of Share Premium Money:
The assessee provided detailed evidence, including PAN numbers, confirmatory letters, copies of IT returns, and bank statements, to establish the identity, creditworthiness, and genuineness of the transactions. However, the A.O. made the addition without proper verification and without following the principles of natural justice. The Tribunal noted that the A.O. did not give sufficient opportunity to the assessee and failed to make necessary enquiries, thus setting aside the assessment order.

4. Non-service of Letters under Section 133(6):
The assessee contended that the A.O. ignored the updated addresses provided and did not properly serve the letters under section 133(6). The Tribunal found that the A.O. did not make adequate efforts to verify the addresses and prematurely concluded the enquiry based on non-service of some letters, which was not justified.

5. Violation of the Principle of Natural Justice:
The assessee argued that the A.O. violated the principle of natural justice by not providing adequate opportunity to present their case. The Tribunal agreed, noting that the A.O. concluded the enquiry within a short period without giving the assessee a chance to respond to the non-service of letters, thereby violating natural justice principles.

6. Perversity in the CIT(A)'s Order:
The assessee claimed that the CIT(A)'s order suffered from perversity as it ignored relevant evidence and judicial decisions. The Tribunal observed that the CIT(A) did not consider various judgments cited by the assessee and relied on non-applicable judicial decisions, leading to a perverse conclusion.

7. Interest Levied under Sections 234A, 234B, and 234C:
The assessee challenged the interest levied under these sections. However, since the Tribunal set aside the assessment order for a de-novo assessment, it did not express any view on this issue, leaving it open for consideration by the assessing authority.

8. Initiation of Penalty Proceedings under Section 271(1)(c)/274:
The assessee contested the initiation of penalty proceedings. Similar to the interest issue, the Tribunal did not adjudicate this ground due to the setting aside of the assessment for a fresh assessment.

Conclusion:
The Tribunal set aside the assessment order and restored the assessment to the file of the A.O., directing them to dispose of the objections against the reasons for reopening by a separate speaking order and to provide sufficient opportunity to the assessee. The appeal was partly allowed for statistical purposes, and the other grounds were not adjudicated due to the setting aside of the assessment.

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