2021 (5) TMI 887 - AT - Income Tax

Reopening of assessment u/s 147 - no sale of immovable property during the financial year 2010-11 and also requested for supply of reasons for reopening of the assessment u/s 148 - HELD THAT - There is no mention of any letters nor there was any mention of supplying the reasons for reopening of the assessment to the assessee. Though a specific ground was taken before the CIT (A),he has not held the issue in favour of the assessee. The Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd 2002 (11) TMI 7 - SUPREME COURT held that where a notice u/s 148 is issued and the assessee, after filing of the return of income in response to such notice, requests the AO to supply the reasons for reopening, AO is bound to supply the reasons for reopening the assessment and only after disposal of the objections, if any, raised by the assessee, can the AO proceed to reassess the income of the assessee. In this case, it is clear that the Assessing Officer has not followed the due procedure as mandated by the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd (cited Supra). We deem it fit and proper to remand the issue to the file of the AO with a direction to supply the reasons for reopening of the assessment to the assessee and only after disposal of the objections, if any, raised by the assessee, the AO shall proceed to recompute the income of the assessee in accordance with law. Needless to mention that the assessee shall be given a fair opportunity of hearing. Assessee s appeal is treated as allowed for statistical purposes.

Summary

Issues involved:
Validity of reassessment proceedings, Addition of unexplained investment u/s 69B, Failure to provide reasons for reopening the case, Application of principles of natural justice.

Validity of reassessment proceedings:
The case involves the assessee's appeal against the order of the CIT (A) sustaining the addition of unexplained investment u/s 69B. The Assessing Officer issued notices u/s 148 based on information regarding the purchase of penny stocks for generating bogus LTCG/STCL. The assessee contended that the reopening after 6 years without reasons is bad in law. The CIT (A) found the reassessment proceedings valid as the assessee participated. The Tribunal referred to the GKN Driveshafts case, stating that the AO must provide reasons for reopening and address objections before proceeding with reassessment. Consequently, the issue was remanded to the AO for compliance with due procedure.

Addition of unexplained investment u/s 69B:
The Assessing Officer treated the total investment in penny stocks as unexplained under section 69B, bringing it to tax. The assessee argued that the sources of the investment were properly explained and acknowledged by the AO, hence no unexplained investment existed. The CIT (A) upheld the addition, relying on the NRA Iron and Steel case. The Tribunal noted the assessee's contentions regarding the proper explanation of sources and the lack of concealment. The matter was remanded for proper compliance with the reopening procedures.

Failure to provide reasons for reopening the case:
The assessee raised concerns about the lack of reasons provided for reopening the case under section 148. The Tribunal highlighted the importance of the AO supplying reasons for reopening, as established in the GKN Driveshafts case. It was observed that the AO did not follow due procedure by not providing reasons and addressing objections raised by the assessee. Consequently, the issue was remanded for adherence to the prescribed process.

Application of principles of natural justice:
The assessee contended that the order of the CIT (A) was against the principles of natural justice as no opportunity of hearing was given. While the Tribunal did not delve deeply into this issue, the overall decision to remand the case for compliance with procedural requirements indirectly addressed the concerns related to natural justice. The Tribunal emphasized the importance of providing a fair opportunity of hearing during reassessment proceedings.

In conclusion, the Tribunal's judgment primarily focused on the procedural aspects related to the validity of reassessment proceedings, the treatment of unexplained investment under section 69B, the necessity of providing reasons for reopening the case, and ensuring the application of principles of natural justice. The decision to remand the case to the Assessing Officer for proper compliance with legal procedures underscores the significance of adhering to due process and upholding procedural fairness in income tax assessments.