2023 (3) TMI 918 - AT - Income Tax

Validity of reopening of assessment - Reasons to believe - independent application of mind by AO - AO mandation to preliminary enquiry and investigation and establishing the necessary nexus between material and formation of belief that income has escaped assessment - HELD THAT - We find that the matter is squarely covered by the decision of Smt Sudesh Rani Others 2023 (1) TMI 716 - ITAT CHANDIGARH wherein it was held that the AO doesn t have the legal basis to acquire jurisdiction for reassessment u/s 147 as he has simply relied upon the report and conclusion drawn upon by Investigation Wing Kolkata without carrying out any preliminary enquiry and investigation and establishing the necessary nexus between material and formation of belief that income has escaped assessment and there was no independent application of mind by the AO as can be discernable from the reasons so recorded and in view of the same, the notice issued u/s 148 and consequent reassessment proceedings were set-aside. In the instant case as well, we find that the reasons have been recorded on identical lines by the Assessing officer simply relying upon the report and conclusion drawn upon by Investigation Wing Kolkata without carrying out any preliminary enquiry and investigation and establishing the necessary nexus between material and formation of belief that income has escaped assessment. There is clearly no independent application of mind by the AO as can be discernable from the reasons so recorded - Appeal of assessee allowed.

Issues Involved:
1. Legality of proceedings initiated under Section 147 of the Income Tax Act, 1961.
2. Addition of Rs. 1,22,55,570/- under Section 68 of the Income Tax Act, 1961.
3. Addition of Rs. 3,67,670/- under Section 69C of the Income Tax Act, 1961.
4. Violation of principles of natural justice.

Summary:

1. Legality of proceedings initiated under Section 147 of the Income Tax Act, 1961:
The assessee challenged the reassessment proceedings initiated under Section 147 based on information from the Pr. DIT (Investigation), Kolkata. The Tribunal found that the Assessing Officer (AO) did not carry out any further examination or verification and did not apply his independent mind. The Tribunal referred to the decision of the Coordinate Benches in the case of Smt. Sudesh Rani and others, where it was held that the AO must form a prima facie opinion based on tangible material that there is an escapement of income. The Tribunal concluded that the AO's reasons were merely conclusions based on the Investigation Wing's report, lacking independent application of mind, and thus, the reassessment proceedings were set aside.

2. Addition of Rs. 1,22,55,570/- under Section 68 of the Income Tax Act, 1961:
The AO treated the sale consideration received by the assessee on the sale of shares of M/s Access Global Ltd. as bogus and considered it as unexplained cash credit under Section 68. The Tribunal found that the AO's reasons for reopening the assessment were based on generic information and lacked specific evidence linking the assessee's transactions to the alleged bogus entries. The Tribunal emphasized that the AO must have a tangible basis for forming a belief that income has escaped assessment, which was absent in this case.

3. Addition of Rs. 3,67,670/- under Section 69C of the Income Tax Act, 1961:
The AO made an addition of Rs. 3,67,670/- under Section 69C for alleged brokerage expenses related to the long-term capital gain entries. The Tribunal noted that the AO's reasons for reopening the assessment did not establish a clear nexus between the material and the formation of the belief that income had escaped assessment. The Tribunal reiterated that the AO must independently verify and investigate the information received before forming a belief of escapement of income.

4. Violation of principles of natural justice:
The assessee argued that the assessment was framed by the AO without affording an opportunity to cross-examine the persons whose statements were relied upon. The Tribunal found that the AO's reasons for reopening the assessment did not demonstrate independent application of mind and were based solely on the Investigation Wing's report. The Tribunal concluded that the AO's actions violated the principles of natural justice.

Conclusion:
The Tribunal allowed the appeal of the assessee, setting aside the notice issued under Section 148 and the consequent reassessment proceedings due to the lack of independent application of mind by the AO and the absence of a tangible basis for forming a belief that income had escaped assessment. The other grounds raised on merits of the additions were dismissed as infructuous. The order was pronounced in the open Court on 17/03/2023.

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