2023 (6) TMI 349 - AT - Income Tax

Reopening of assessment u/s 147 - share application money and share premium which has escaped assessment - HELD THAT - Having gone through the reasons to believe recorded by the Ld. AO, income escaping assessment has been alleged to be in respect of the share application money and share premium whereas in the assessment order, there is no whisper in this respect but a show cause notice was issued seeking explanation for unsecured loans from two parties for which the addition has been made while completing the assessment. In the assessment completed, there is no addition in respect of the income escaping assessment alleged by the Ld. AO. We hold that the impugned assessment order passed u/s. 143(3) r.w.s.147 of the Act is bad in law. When the very foundation of reopening is knocked out, further proceedings undertaken would not survive. Accordingly, the additional ground taken by the assessee is allowed.

Summary

Issues Involved:
1. Legality of the reassessment proceedings initiated u/s 148 of the Income-tax Act, 1961.
2. Addition of Rs. 13,50,000/- and Rs. 16,25,000/- received from Akash Verma and Manish Verma u/s 68 of the Income-tax Act, 1961.

Summary:

1. Legality of the reassessment proceedings initiated u/s 148 of the Income-tax Act, 1961:

The assessee challenged the reassessment proceedings initiated u/s 148 of the Act, arguing that the assessment was reopened on the grounds that share premium of Rs. 3,05,85,000/- had escaped assessment. However, the assessment order did not address this issue but instead made an addition of Rs. 29,75,000/- towards unsecured loans. The Tribunal noted that the reasons recorded for reopening the assessment did not mention the addition made towards unsecured loans. The Tribunal relied on the decision of the Hon'ble Supreme Court in NTPC Vs. CIT 229 ITR 383 (SC) and the Hon'ble High Court of Bombay in CIT Vs. Jet Airways Ltd. 331 ITR 236, which held that if the issue that led to the reopening of the assessment is not included in the reassessed income, the reassessment order is unjustified. Consequently, the Tribunal held that the reassessment order passed u/s 143(3) read with section 147 of the Act is bad in law and allowed the additional ground raised by the assessee.

2. Addition of Rs. 13,50,000/- and Rs. 16,25,000/- received from Akash Verma and Manish Verma u/s 68 of the Income-tax Act, 1961:

The assessee contested the addition of Rs. 13,50,000/- and Rs. 16,25,000/- received from Akash Verma and Manish Verma, respectively, u/s 68 of the Act. However, since the Tribunal held the reassessment order to be bad in law, the grounds taken on merit in the memo of appeal became academic in nature and were not adjudicated upon.

Conclusion:

The appeal of the assessee was allowed on the ground that the reassessment proceedings initiated u/s 148 were invalid as the addition made in the reassessment order was not related to the issue for which the proceedings were initiated.

Order pronounced in the open Court on 5th June, 2023.