2020 (10) TMI 512 - AT - Income Tax

Reopening of assessment u/s 147 - AO obligation to dispose off the objections filed by the assessee - tangible material to conclude or to form the opinion that due to Client Code Modification Facility used by the broker the income of the assessee assessable to tax has escaped assessment - HELD THAT - The requirement of disposing off the objections against the notice issued u/s 148 by a separate and speaking order is a mandatory requirement in view of the judgment in case of GKN Driveshafts (India) Ltd. vs. ITO 2002 (11) TMI 7 - SUPREME COURT the failure of the AO to dispose off the objections renders the reassessment order not sustainable in law. In the case in hand there is complete failure on the part of the AO to dispose off the objections against notice u/s 148 of the Act and not merely a procedural irregularity of separate and speaking order. Accordingly, in the facts and circumstances of the case and specifically involving the issue of addition in this case the AO does not deserve a second inning. Accordingly, without remitting the matter to the record of the AO, the reassessment order passed by the AO is set aside being invalid. - Appeal of the assessee is allowed.

Summary

Issues Involved:
1. Validity of the reassessment proceedings initiated under Section 147/148 of the Income Tax Act.
2. Confirmation of the addition of ?2,71,317/- by disallowing the loss incurred in F&O trading of shares.
3. Confirmation of the addition of ?5,426/- on account of alleged unaccounted commission paid for acquiring the alleged accommodation loss.

Detailed Analysis:

1. Validity of the Reassessment Proceedings Initiated under Section 147/148:

The assessee challenged the reassessment order on the grounds that the Assessing Officer (AO) initiated the proceedings based on presumptions and without carrying out independent inquiries. The assessee argued that the AO assumed jurisdiction merely on borrowed satisfaction from the DIT (I & CI) without providing the assessee an opportunity for confrontation. The Tribunal found that the assessee had indeed raised objections against the notice under Section 148, which were not disposed of by the AO before passing the reassessment order. This failure to dispose of the objections was deemed a violation of the procedure prescribed by the Supreme Court in the case of GKN Driveshafts (India) Ltd. vs. ITO, which mandates that objections must be dealt with by a speaking order before proceeding with the reassessment. The Tribunal cited several cases, including Pushpak Bullion Pvt. Ltd. vs. DCIT and General Motors India P. Ltd. vs. DCIT, to support the mandatory requirement of disposing of objections. Consequently, the reassessment order was set aside as invalid.

2. Confirmation of the Addition of ?2,71,317/- by Disallowing the Loss Incurred in F&O Trading of Shares:

The Tribunal did not delve into the merits of this issue, as the reassessment order itself was set aside on legal grounds. Therefore, the addition of ?2,71,317/- made by the AO by disallowing the loss incurred in F&O trading of shares was not specifically addressed.

3. Confirmation of the Addition of ?5,426/- on Account of Alleged Unaccounted Commission Paid for Acquiring the Alleged Accommodation Loss:

Similarly, the issue regarding the addition of ?5,426/- on account of alleged unaccounted commission was also not specifically addressed due to the setting aside of the reassessment order on legal grounds.

Conclusion:

The Tribunal set aside the reassessment order on the ground that the AO failed to dispose of the objections raised by the assessee against the notice issued under Section 148. This procedural lapse rendered the reassessment order invalid. Consequently, the Tribunal did not address the other grounds raised by the assessee regarding the additions made by the AO. The appeal of the assessee was allowed, and the reassessment order was set aside.