2021 (7) TMI 75 - AT - Income Tax

Validity of reopening of assessment u/s 147 - AO non disposing objection against reopening orders - HELD THAT - We find that in these cases the assessing officer has in his assessment order noted that assessee did not file the objection to the reopening. However learned CIT(A) in his order has noted this aspect. He has also reproduced one of the letters by the assessee to the assessing officer wherein objections to reopening were duly raised. CIT(A) is of the opinion that honourable Supreme Court decision in GKN Driveshaft 2002 (11) TMI 7 - SUPREME COURT does not hold that the reassessment will be bad if objection are not disposed of. In this regard, on this premise he has rejected the assessee s contention that assessment is bad in as much as objections to reopening have not been disposed off - View of the learned CIT appeals is not in accordance with honourable Bombay High Court decision in the case of Fomento Resorts Hotels Ltd. 2019 (9) TMI 1284 - BOMBAY HIGH COURT dealt with in the above said order of the ITAT. It is settled law the order of honourable jurisdictional High Court is binding upon the subordinate courts and tribunals. We find that learned CIT appeals has erred not following the binding order of honourable jurisdictional High Court and instead of referring to a Delhi High Court decision in this regard. Assessing Officer is wrong in observing that assessee has not filed objection to reopening. The objection to reopening was intimated to Assessing Officer and the objections have not been disposed off. This, as per the ratio of Hon'ble Jurisdictional High Court decision as referred above is fatal to the assessment. Hence, we set aside the orders of authorities below and decide the issue in favour of assessee.

Summary

Issues Involved:
1. Natural Justice
2. Reassessment
3. Addition under Section 68 of the Income Tax Act
4. Addition under Section 69 of the Income Tax Act

Detailed Analysis:

1. Natural Justice
The appellants contended that the Learned Commissioner of Income-tax (Appeals) [Ld. CIT (A)] failed to grant a proper, sufficient, and adequate opportunity of being heard, thus breaching the principles of natural justice. They argued that the appellate order was framed without proper application of mind to the facts and submissions presented by the appellants. The tribunal did not specifically address this issue as the primary focus was on the procedural lapses in the reassessment process.

2. Reassessment
The primary issue revolved around the reassessment proceedings initiated under Section 147 read with Section 148 of the Income Tax Act, 1961. The appellants argued that their case did not fall within the parameters for reassessment as laid down by the Act and that the necessary preconditions for initiating and completing the reassessment were not satisfied. The tribunal found that the Assessing Officer (A.O.) had not disposed of the objections raised by the assessee against the reopening of the assessment, which is a mandatory requirement as per the Supreme Court's decision in GKN Driveshafts (India) Ltd. v. ITO [259 ITR 19]. This procedural lapse rendered the reassessment order invalid. The tribunal cited various judicial precedents, including decisions from the Bombay High Court and other ITAT benches, to support this conclusion. Consequently, the reassessment orders were quashed.

3. Addition under Section 68 of the Income Tax Act
The appellants challenged the addition of ?27,07,327/- made by the A.O. under Section 68 of the Income Tax Act, on account of alleged bogus/unexplained long-term capital gains. They argued that the addition was based on erroneous facts, surmises, suspicion, and conjecture, and that relevant material and considerations were ignored. However, since the tribunal quashed the reassessment orders on procedural grounds, it did not delve into the merits of this addition.

4. Addition under Section 69 of the Income Tax Act
Similarly, the appellants contested the addition of ?1,42,135/- made under Section 69 of the Income Tax Act for alleged unexplained expenses. They contended that the addition was based on surmises, suspicion, and conjecture, and that irrelevant considerations were taken into account while relevant ones were ignored. As with the addition under Section 68, the tribunal did not address the merits of this issue due to the quashing of the reassessment orders.

Conclusion:
The tribunal concluded that the reassessment orders were invalid due to the A.O.'s failure to dispose of the objections raised by the assessee against the reopening of the assessment. This procedural lapse was deemed fatal to the validity of the reassessment. Consequently, the tribunal quashed the reassessment orders, rendering the discussion on the merits of the additions under Sections 68 and 69 academic. The appeals were allowed in favor of the assessee.