2022 (7) TMI 847 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - Absence of primary document for necessary approval of higher authority - as per assessee no notice was available with file of the Assessing Officer and no reasons recorded reopening the case was available with the AO - HELD THAT - We have observed that the department has failed to issue notice, failed to report the reasons for reopening the case and also failed to take the approval of the appropriate authority before as initiation of proceedings u/s 147 - These facts is not controverted by the ld. DR appearing on behalf of the revenue. Therefore, since the notice is not legally issued, the proceedings also not valid in the eye of law and thus, these additional technical grounds of the assessee is allowed without going into merits of the case. The appeal of the assessee is thus, allowed on technical grounds. Penalty u/s 271(1)(b) - Since, the very basis, upon which the proceedings is initiated and notice is alleged to have been issued, in fact is not issued and served upon the assessee as confirmed by the AO in his report dated 26.10.2021. In view of this fact being on record the subsequent levy of penalty of non-compliance on that notice has not valid force so as to levy penalty u/s. 271(b). In terms of this observation the appeal of the assessee is allowed on technical ground. Since, we have allowed the appeal of the assessee on technical ground

Issues Involved:
1. Validity of assessment without issuing notice under section 147/148.
2. Reopening of the case without requisite approval under section 151.
3. Service of notice under section 148.
4. Reassessment of stamp duty value under section 50C.
5. Non-allowance of stamp duty and other expenses under section 54B.
6. Validity of penalty under section 271(1)(b).

Detailed Analysis:

1. Validity of Assessment Without Issuing Notice Under Section 147/148:
The appellant argued that the assessment was concluded without issuing any notice under section 147/148 and without recording reasons as required under the said section. The Tribunal found that no notice was available in the file of the Assessing Officer (AO), and no reasons for reopening the case were recorded. Consequently, the necessary approval from the higher authority was also absent. The Tribunal held that the absence of these primary documents rendered the notice and subsequent proceedings invalid. Therefore, the assessment was declared null and void ab initio.

2. Reopening of the Case Without Requisite Approval Under Section 151:
The appellant contended that the reopening of the case was done without obtaining the requisite approval under section 151. The Tribunal observed that the note sheet mentioned that the case was reopened based on information from the Joint Commissioner of Income Tax (JCIT) instead of a proper sanction. The Tribunal concluded that without the necessary approval, the reopening was bad in law, and thus, the entire assessment proceedings were void.

3. Service of Notice Under Section 148:
The appellant claimed that the assessment proceedings were concluded without any service of notice under section 148. The Tribunal found that no notice was issued or served upon the assessee, as confirmed by the AO's report. Since the notice was not legally issued or served, the proceedings were invalid.

4. Reassessment of Stamp Duty Value Under Section 50C:
The appellant challenged the reassessment of the stamp duty value, arguing that the AO took the reassessed stamp duty value instead of the assessed stamp duty valuation as of the sale date, which was against the provisions of section 50C. However, since the Tribunal allowed the appeal on technical grounds related to the validity of the notice and reopening, this issue became infructuous and was not addressed on merits.

5. Non-Allowance of Stamp Duty and Other Expenses Under Section 54B:
The appellant argued that the AO erred in not allowing the claim of stamp duty and other expenses paid for land purchased for claiming deduction under section 54B. The Tribunal noted that the AO had agreed to the claim in the remand report, but the CIT(A) did not allow it due to the absence of a specific ground. However, this issue also became infructuous due to the Tribunal's decision on technical grounds.

6. Validity of Penalty Under Section 271(1)(b):
The appellant contended that the penalty under section 271(1)(b) was levied based on a vague notice without mentioning the specific charge or non-compliance. The Tribunal found that the notice issued on 25.11.2014 was never served upon the assessee. Since the very basis of the proceedings, i.e., the notice, was not issued and served, the subsequent levy of penalty was invalid. The appeal was allowed on technical grounds, making other grounds infructuous.

Conclusion:
The Tribunal allowed both appeals on technical grounds, declaring the assessment and penalty proceedings void due to the absence of valid notice, reasons for reopening, and requisite approvals. The other grounds raised by the appellant became infructuous as a result.

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