2022 (7) TMI 959 - HC - Income Tax

Reopening of assessment u/s 147 - Cash deposit during the demonitisation period - eligibility of reasons to believe - HELD THAT - As reasons recorded by the AO is required to be looked considering the facts so as to enable the AO to form a belief that income chargeable to tax had escaped assessment on the basis of materials which was available with him. During the course of regular assessment, the AO had asked the assessee to explain the source of cash deposit after demonitisation which was explained by the assessee in reply to the notice under section 142(1) which is accepted by the AO while framing the assessment under section 143(3) - Therefore, ratio laid down by this Court in case of Swati Malove Divetia 2018 (9) TMI 804 - GUJARAT HIGH COURT is applicable to the facts of the present case as the Assessing Officer has recorded the reasons ignoring the reply of the assessee during the course of regular assessment and hence the reasons recorded by the Assessing Officer to reopen the assessment under section 147 of the Act lacks validity and the Assessing Officer proceeded on erroneous premise. This Court in case of Gujarat Power Corporation Ltd. 2012 (9) TMI 69 - GUJARAT HIGH COURT has held that merely because the Assessing Officer did not record the reasons for making no disallowance in the assessment order under section 143(3) of the Act, 1961, would be of no consequence when during the course of assessment proceedings, the Assessing Officer did not reject the reply of the assessee and therefore, any reopening of such assessment would amount to change of opinion. Such tangible material which is otherwise available on the original assessment record and when there is a complete disclosure of all relevant facts upon which the assessment is made, the Assessing Officer cannot reopen the assessment on the ground that the income has escaped assessment due to failure on part of the assessee to disclose truly and fully the material facts. The petition requires consideration and is accordingly allowed. Notice issued by the respondent authority under section 148 of the Act, 1961 is hereby quashed and set aside and as a consequence thereof notice under section 143(2) read with section 147 of the Act, 1961 as well as order rejecting the objections of the assessee (Annexure-I) passed by the respondent authority are hereby quashed and set aside.

Summary

Issues Involved:
Challenge to notice under Section 148 of the Income Tax Act, 1961 and subsequent orders for reopening assessment for the assessment year 2017-2018.

Analysis:
1. The petitioner filed a petition under Article 226 of the Constitution of India, seeking various writs to quash and set aside impugned notices and orders related to the reopening of the assessment for the year 2017-2018.

2. The challenge was against notices dated 30.03.2021 and 20.05.2021, along with an order dated 12.08.2021, issued by the respondent authority under Sections 148 and 143(2) read with Section 147 of the Income Tax Act, 1961, rejecting objections raised by the petitioner.

3. The petitioner argued that the reopening of the assessment was a change of opinion as the issue regarding cash deposits during demonetization was previously examined during the regular assessment under Section 143(3) of the Act.

4. The respondent authority contended that there was tangible material to believe that income had escaped assessment, as the petitioner failed to explain the nature and source of bank deposits post-demonetization.

5. The Court examined the facts, noting that the petitioner had provided detailed explanations and documents during the assessment proceedings, including responses to summons and notices regarding cash deposits.

6. It was observed that the Assessing Officer accepted the explanations provided by the petitioner during the regular assessment under Section 143(3) of the Act, which included clarifications on cash collections and deposits during demonetization.

7. Referring to precedents, the Court held that the reasons recorded by the Assessing Officer for reopening the assessment lacked validity, as they ignored the petitioner's earlier explanations during the regular assessment.

8. Relying on the principle that reopening an assessment due to the failure of the assessee to fully disclose material facts is impermissible when all relevant facts were disclosed during the original assessment, the Court allowed the petition.

9. Consequently, the Court quashed the notices and orders related to the reopening of the assessment for the year 2017-2018, ruling in favor of the petitioner.

10. The Court made the rule absolute, disposing of the Civil Application without costs in light of the judgment.