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2022 (12) TMI 230 - AT - Income TaxReopening of assessment u/s 147 - Suspicion of Revenue - Bogus LTCG - HELD THAT - Tribunal Delhi bench in decision dated 29/09/2021 the case of Dove Consultants Pvt. Ltd. 2021 (12) TMI 797 - ITAT DELHI held that reopening has to be based on the reliable material and not on the basis of reason to suspect, accordingly, the Tribunal quashed the reassessment proceeding. In judgment case of PCIT Vs M/s. Shodiman Investments Pvt. Ltd. 2018 (4) TMI 1287 - BOMBAY HIGH COURT held that reassessment proceeding cannot be initiated based on suspicious transactions in the bank account of Mahasagar Securities Ltd. In the instant case also according to the AO he found the long term capital gain declared by the assessee as suspicious transactions and not as reliable information and for ascertaining, he needed the investigation. In our opinion, in view of the decision of the Hon ble Bombay High Court in the case of Shodiman Investments P. Ltd. 2018 (4) TMI 1287 - BOMBAY HIGH COURT AO is not permitted to reopen assessment based on the reason to suspicion. The reassessment proceedings completed in the case of the assessee are held to be invalid and accordingly same are quashed. The additional ground raised by the assessee is allowed.
Issues Involved:
1. Validity of the notice issued under section 148 of the Income-tax Act. 2. Application of mind by the Assessing Officer while recording reasons for reopening the assessment. 3. Relevance and sufficiency of the material relied upon by the Assessing Officer. 4. Basis of the reassessment proceedings, whether based on suspicion or reliable information. Issue-wise Detailed Analysis: 1. Validity of the notice issued under section 148 of the Income-tax Act: The assessee challenged the notice issued under section 148, arguing it was "bad in law" and should be quashed. The Tribunal admitted this additional ground as it was legal in nature and did not require fresh facts investigation, citing the Supreme Court decision in NTPC Ltd (229 ITR 383). 2. Application of mind by the Assessing Officer while recording reasons for reopening the assessment: The Tribunal found that the Assessing Officer recorded reasons to believe that income had escaped assessment based on incorrect facts. Specifically, the AO noted that the assessee had not disclosed the receipt of Rs. 1,67,70,454/- and had not filed a return of income, which was incorrect as the assessee had filed a return on 28/03/2016. This indicated a lack of application of mind by the AO, making the reassessment proceedings invalid. The Tribunal cited the Delhi High Court's decision in CIT v. G & G Pharma (2015) 384 ITR 147 (Del), emphasizing the necessity for the AO to apply his mind. 3. Relevance and sufficiency of the material relied upon by the Assessing Officer: The AO mentioned that SEBI had suspended trading in several penny stock companies but did not specify if MKEL was among them. The Tribunal noted that suspension of trading in other shares was irrelevant for forming a belief that income from MKEL shares had escaped assessment. The Tribunal emphasized that the material relied upon must be relevant and sufficient, citing the Supreme Court's decision in Rajesh Jhaveri Stock Brokers Private Limited (291 ITR 500). 4. Basis of the reassessment proceedings, whether based on suspicion or reliable information: The Tribunal found that the AO reopened the assessment based on suspicion rather than reliable information. The AO's reasoning included a suspicion of the quantum of long-term capital gain and a need for detailed investigation. The Tribunal referenced the Bombay High Court's decision in Coronation Agro Industries Ltd and PCIT v. Shodiman Investments P. Ltd., which held that reassessment based on suspicion is invalid. Consequently, the Tribunal quashed the reassessment proceedings. Conclusion: The Tribunal held the reassessment proceedings invalid due to the AO's lack of application of mind, reliance on irrelevant material, and initiation based on suspicion rather than reliable information. The additional ground raised by the assessee was allowed, and the appeal was decided in favor of the assessee. The Tribunal did not adjudicate on the merits of the addition, rendering those arguments academic. Order: The appeal filed by the assessee was allowed, and the reassessment proceedings were quashed. The order was pronounced in open court on 31/10/2022.
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