2022 (10) TMI 336 - AT - Income Tax

Reopening of assessment u/s 147 - Eligibility of reasons to believe - Long Term capital Gain on sale of shares was a bogus transactions and was only an accommodation entry - HELD THAT - We find that there has been no independent application of mind by the AO and the satisfaction is completely based on the input by the Investigation Wing. The facts have not been correlated and there is no linkage between the documents received, sum of the quantity of shares purchased, sum of the trade value as alleged and sum of the quantity of shares purchased, sum of the quantity as entered by the assessee. AO held that the sum of the trade value of sale was Rs.66.01 lacs whereas the sum of the trade value of sale was only Rs.40.08 lacs. Similarly, the sum of the purchase value of the trade mentioned by the AO of Rs.4.71 lacs is totally different from that of the assessee of Rs.20.32 lacs and same is the case with regard to number of trade while we agree that there has to be minimal sufficiency of the primary satisfaction for reopening of the case, in the instant case, we find that even the minimal sufficiency of the fact is absolutely lacking. The quantity, value and the number of trades are also incorrect the reasons recorded. Hence, owing to the entire factual content, we hold that the reasons recorded are faulty, incorrect and not based on the facts, we hold that the notice of reopening cannot be held to be sustainable in law. The whole reassessment proceedings and the resultant order of assessment passed under Section 143(3)/148 of the Act have become vitiated entailing in nullifying proceedings - Decided in favour of assessee.

Issues:
1. Validity of action initiated under section 147 by the Assessing Officer
2. Classification of Long Term capital Gain on sale of shares as bogus transactions
3. Addition of Rs 40,47,573 made by the Assessing Officer
4. Rejection of claim of earning genuine Long Term capital Gain
5. Reopening of the case based on information from Investigation Wing
6. Correlation of facts and documents in reassessment proceedings

Analysis:

Issue 1: Validity of action initiated under section 147
The appeal challenged the correctness of the action initiated under section 147 by the Assessing Officer. The CIT(A) upheld the legality of the action, leading to the appeal before the tribunal. The tribunal analyzed the grounds raised by the assessee and found discrepancies in the allegations made by the Assessing Officer regarding the purchase of shares, mode of payment, and nature of transactions. The tribunal concluded that the reasons recorded for reopening the case were faulty and not based on facts, rendering the notice of reopening unsustainable in law. Consequently, the tribunal quashed the reassessment proceedings and the order of assessment under Section 143(3)/148.

Issue 2: Classification of Long Term capital Gain as bogus transactions
The CIT(A) held that the Long Term capital Gain on the sale of shares was a bogus transaction and only an accommodation entry. However, the tribunal found that the Assessing Officer's allegations were unfounded, as the shares were purchased through recognized stock exchanges and sold after holding them for more than 15 months, complying with tax regulations. The tribunal noted the regularity of transactions and profit/loss patterns, indicating genuine trading activities. Therefore, the tribunal disagreed with the CIT(A)'s classification and held that the claim of earning genuine Long Term capital Gain was valid.

Issue 3: Reopening of the case based on information from Investigation Wing
The Assessing Officer initiated action under section 147 based on information received from the Investigation Wing regarding alleged irregularities in the transactions. The tribunal scrutinized the allegations and found discrepancies between the facts on record and the reasons recorded by the Assessing Officer. The tribunal emphasized the lack of independent application of mind by the Assessing Officer and the absence of correlation between the documents received and the allegations made. Due to these deficiencies, the tribunal deemed the notice of reopening as legally unsustainable and quashed the reassessment proceedings.

In conclusion, the tribunal allowed the appeal of the assessee, highlighting the faulty reasoning behind the reassessment proceedings and the lack of factual basis for the allegations made by the Assessing Officer. The tribunal's decision emphasized the importance of proper assessment procedures and adherence to legal standards in initiating tax actions.

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