2022 (11) TMI 580 - AT - Income Tax

Reopening of assessment u/s 147 - reasons to believe - HELD THAT - Unless the AO was to give reasons for holding that the assessee company was controlled by this person Section 92A(2)(j) could not have been invoked- and as we have analyzed earlier as well mere directorship of the assessee company or that person being described as key managerial person in the annual accounts of the company can not by itself be reason enough to come to this conclusion. It also well-settled in law to quote the words of the in Hindustan Lever s case 2004 (2) TMI 41 - BOMBAY HIGH COURT that The reasons recorded by the AO cannot be supplemented by filing an affidavit or making an oral submission otherwise the reasons which were lacking in the material particulars would get supplemented by the time the matter reaches to the Court on the strength of affidavit or oral submissions advanced . Viewed thus the reasons recorded by the AO do not lead to the conclusion that the assessee and Biomatrix were associated enterprises and therefore it could not be said that any income on account of ALP adjustment had escaped assessment. As also bearing in mind the entirety of the case we hold that the reasons for reopening the assessment were unsustainable in law. The impugned reassessment proceedings must stand quashed for this short reason alone. As we have quashed the reassessment proceedings for this short reason we see no need to deal with other issues raised in the appeal or in the cross-objections or on merits.

Summary

Issues Involved:
1. Validity of the reopening of assessments.
2. Association between the assessee company and Biomatrix under Section 92A(2)(j).
3. Adequacy of reasons recorded for reopening the assessment.

Analysis:

1. Validity of the Reopening of Assessments:
The foundational aspect of the matter is the reopening of the assessment. The grievance against the reasons for reopening the assessment, which was not adjudicated by the learned CIT(A), has been raised by the assessee in the cross-objections. The Tribunal emphasized that the reasons recorded for reopening the assessment must meet judicial scrutiny and be examined on a standalone basis, as established by the Hon'ble Bombay High Court in Hindustan Lever Ltd Vs R B Wadkar [(2004) 268 ITR 332 (Bom)]. The reasons must provide a clear link between the conclusion and the evidence and should not merely suggest the need for an inquiry which may result in the detection of income escaping assessment.

2. Association between the Assessee Company and Biomatrix under Section 92A(2)(j):
The reopening was based on inputs from the investigation wing about the outstanding put options and the corporate guarantee given by the assessee to ICICI Bank Singapore for Biomatrix. The Assessing Officer concluded that the assessee and Biomatrix were associated enterprises because Sandeep Tandon, who was a director in the assessee company, owned 91% of Biomatrix. The Tribunal questioned whether merely being a director and a key managerial person implies control over the company, as required under Section 92A(2)(j). The Tribunal concluded that being a director or a key managerial person does not imply control over the company. Control, as envisaged in Section 92A(2), must be more cogent, such as holding more than 26% of the voting power or appointing more than half of the directors. There was no material indication that Sandeep Tandon controlled the assessee company.

3. Adequacy of Reasons Recorded for Reopening the Assessment:
The Tribunal found that the reasons recorded by the Assessing Officer did not substantiate the conclusion that the assessee and Biomatrix were associated enterprises. The Tribunal held that the reasons recorded were inadequate and insufficient to conclude that the income had escaped assessment. The reasons must be self-explanatory and should not keep the assessee guessing. The Tribunal emphasized that reasons recorded by the Assessing Officer cannot be supplemented by affidavits or oral submissions.

Conclusion:
The Tribunal held that the reasons for reopening the assessment were unsustainable in law, leading to the quashing of the reassessment proceedings. As the reassessment proceedings were quashed, the Tribunal found no need to address other issues raised in the appeal or cross-objections. Consequently, both cross-objections were allowed, and both appeals were dismissed as infructuous.