2021 (4) TMI 1150 - AT - Income Tax

Reopening of assessment u/s 147 - addition u/s 68 - Bogus LTCG - HELD THAT - From the details furnished by the assessee before the Assessing Officer as well as before the learned CIT(A), find the assessee has demonstrated that he had sold 15,000 shares of M/s. DMC Education Ltd., during the A.Y. 2011-12 for a consideration and after deducting the purchase cost of ₹ 60,000, shares of which were acquired in A.Y. 2006-07 (5,000 shares) and subsequent bonus shares, the assessee after deducting the purchase cost and transfer expenses had declared Long Term Capital Gain of ₹ 1,29,903/-. Therefore, once, the assessee had declared such income and claimed the same as exempt, the Assessing Officer without verifying the return and without independent application of mind could not have reopened the assessment on the basis of report from the Investigation Wing, which is on account of borrowed satisfaction and not independent application of mind. Thus, find merit in the argument of the learned counsel for the assessee that such reopening is based on wrong appreciation of facts and on borrowed satisfaction. It has been held in various decisions that when the reopening of the assessment is based on incorrect or wrong appreciation of facts, such reopening is not in accordance with law. It has also been held in various decisions that when the reopening is made on the basis of report of the Investigation Wing and without independent application of mind by the Assessing Officer to the return field by the assessee, such reopening of assessment is also not in accordance with law and has to be quashed. Since, in the instant case, the Assessing Officer has acted mechanically on the basis of report from the Investigation Wing and without independent application of mind and the reopening of assessment is on wrong appreciation of facts, therefore, such reopening of the assessment, in our opinion, is not in accordance with law. - Decided in favour of assessee.

Issues Involved:
1. Validity of proceedings under sections 147/148 of the Income Tax Act.
2. Validity of approval under section 151 of the Income Tax Act.
3. Adjudication of objections against initiation of reassessment proceedings.
4. Justification for addition under section 68 for sale consideration received on sale of shares.
5. Justification for addition under section 69C for alleged commission expenses.

Detailed Analysis:

1. Validity of Proceedings under Sections 147/148:
The assessee challenged the reopening of the assessment under sections 147/148, arguing it was "without jurisdiction, without application of mind, unwarranted, mechanical, on borrowed satisfaction and on the basis of wrongly taken facts." The Tribunal found merit in this argument, noting that the Assessing Officer (AO) had reopened the assessment based on information from the Investigation Wing without independently verifying the return of income filed by the assessee. The Tribunal cited several judgments, including "CIT vs. Kamdhenu Steel & Alloys Ltd." and "Pr. CIT vs. G. And G. Pharma India Ltd.," which held that reopening based on incorrect or wrong appreciation of facts and without independent application of mind is not in accordance with law. Therefore, the Tribunal quashed the reassessment proceedings initiated by the AO.

2. Validity of Approval under Section 151:
The assessee contended that the approval under section 151 was "fatally defective, mechanical and without application of mind." The Tribunal noted that the assessee had requested the AO to provide the copy of the approval taken under section 151(1), but no such copy was provided. The Tribunal referred to various decisions which held that approval given in a mechanical manner is not in accordance with law. Consequently, the Tribunal found the reassessment proceedings invalid due to the defective approval process.

3. Adjudication of Objections Against Initiation of Reassessment Proceedings:
The assessee argued that the AO did not fully adjudicate the objections against the initiation of reassessment proceedings as per the directions of the Hon'ble Supreme Court in "G.K.N. Drive Shafts." The Tribunal agreed, noting that the AO had rejected the objections in a "speaking order" without proper adjudication. This procedural lapse contributed to the Tribunal's decision to quash the reassessment proceedings.

4. Justification for Addition Under Section 68:
The AO had made an addition of ?1,90,800 under section 68, arguing that the assessee had not declared this amount in its return of income. The assessee countered by providing evidence that it had declared Long Term Capital Gain (LTCG) of ?1,29,903 after deducting the purchase cost and transfer expenses from the sale consideration of ?1,90,227 for 15,000 shares of M/s. DMC Education Ltd. The Tribunal found that the AO had reopened the assessment without verifying the return of income and had acted on borrowed satisfaction. Therefore, the Tribunal ruled that the addition under section 68 was not justified.

5. Justification for Addition Under Section 69C:
The AO had also made an addition of ?9,540 under section 69C for alleged commission expenses. The assessee argued that there was no material evidence to support this addition. Since the Tribunal quashed the reassessment proceedings, it did not specifically adjudicate this issue but noted that the addition was not justified due to the lack of evidence.

Conclusion:
The Tribunal quashed the reassessment proceedings initiated by the AO under section 147 of the Income Tax Act, finding them to be based on borrowed satisfaction and without independent application of mind. Consequently, the legal grounds raised by the assessee were allowed, and the various other grounds challenging the addition on merit were not adjudicated as they became academic in nature. The appeal filed by the assessee was allowed.

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