2022 (1) TMI 1192 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - submission of non providing sufficient opportunity to the assessee - information was received that the assessee had made investment in shares of M/s. Mirzapur Chemicals Works Pvt. Ltd - on the basis that the Directors of M/s. Mirzapur Chemicals Works Pvt. Ltd. fail to attained the office of the AO made addition - HELD THAT - Addition was made purely on the basis that the Director of M/s. Mirzapur Chemicals Works Pvt. Ltd. failed to attend the office of the assessing authority. It is seen that the Authorized Representative had categorically stated before the Assessing Officer that the Directors of M/s. Mirzapur Chemicals Works Pvt. Ltd. were out of station. The Assessing Officer had not given other opportunity to the assessee to support its contention. Under these circumstances the assessee was not provided adequate opportunity by the Assessing Authority. Therefore, the impugned assessment order is set aside and assessment is restored to the file of the AO to make it denovo assessment after giving sufficient opportunity to the assessee. Further, the Assessing Officer would also advert to the objections of the assessee against the reopening of the assessment. The grounds raised by the assessee are allowed for statistical purpose

Issues Involved:
1. Legality of the reopening of the assessment under sections 147/148.
2. Adequacy of the opportunity provided to the assessee to be heard.
3. Justification of the addition of ?10,00,000 under section 69 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Legality of the Reopening of the Assessment:
The assessee contended that the notice issued under section 148 was invalid as it was based on "borrowed satisfaction" from the ITO (HQ) (I & CI), Lucknow, without independent application of mind by the Assessing Officer (AO). The AO failed to provide the report from the ITO (HQ) (I & CI) and did not record a belief that income had escaped assessment. The assessee argued that the reopening was done on mere suspicion rather than concrete evidence, referencing several judgments, including Pr CIT v. Meenakshi Overseas (P) Ltd. and CIT v. Suren International, which emphasized the necessity of independent application of mind by the AO before reopening an assessment.

2. Adequacy of the Opportunity Provided to the Assessee:
The assessee argued that the AO did not provide a proper opportunity to be heard, as the material collected behind the assessee’s back was not disclosed, and no opportunity for cross-examination was given. The principle of natural justice was allegedly violated. The AO relied on information from the ITO (HQ) (I & CI), Lucknow, without confronting the assessee with the evidence. The assessee cited several case laws, including CIT v. Pradeep Kumar Gupta and Multitex Filtration Engineers P. Ltd. v. Dy CIT, which underscore the necessity of providing the assessee an opportunity to cross-examine witnesses and rebut evidence used against them.

3. Justification of the Addition of ?10,00,000 under Section 69:
The AO added ?10,00,000 to the income of the assessee on the basis that the directors of M/s. Mirzapur Chemicals Works Pvt. Ltd. failed to attend the AO's office. The AO did not provide another opportunity for the assessee to substantiate its claim. The CIT(A) upheld the AO’s decision, emphasizing that the burden of proof lies on the person making the claim. The CIT(A) cited several judgments, including CIT v. Durga Prasad More and Sumati Dayal v. CIT, which state that the apparent must be considered real until proven otherwise and that taxing authorities can look into surrounding circumstances to determine the reality of transactions.

Tribunal's Decision:
The Tribunal found that the AO did not provide adequate opportunity to the assessee to substantiate its claim and failed to address the objections regarding the reopening of the assessment. The Tribunal set aside the impugned assessment order and restored the matter to the AO for a denovo assessment, ensuring that the assessee is given sufficient opportunity to present its case. The grounds raised by the assessee were allowed for statistical purposes.

Conclusion:
The appeal was allowed for statistical purposes, and the matter was remanded back to the AO for fresh assessment after providing adequate opportunity to the assessee and addressing the objections regarding the reopening of the assessment.

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