2023 (6) TMI 668 - AT - Income Tax

Enhancement order u/s 252(2) of CIT - enhancement to the disallowance carried out by the AO - HELD THAT - For the enhancement carried out by the CIT(A), we observe that it is incumbent upon the CIT(A) under Section 251(2) to provide reasonable opportunity of showing cause against any proposed enhancement to the Assessee. Thus, the CIT(A) is prevented from making enhancement to the assessed income without opportunity to the assessee. In view of the explicit provision in this regard, it is mandatory requirement of law to necessarily provide opportunity failing which the enhancement carried out is unsustainable in law. On a perusal of the order of the CIT(A), nowhere reference to such show cause or opportunity to assessee for carrying out enhancement is found. Therefore, the enhancement made by the CIT(A) is unsustainable in law. The enhancement so carried out by the CIT(A) thus stand reversed. Action of the lower authorities for making additions on the ground other than recorded reasons - We do not see any merit in such plea. The additions carried out by the Assessing Officer squarely flows from reasons recorded, i.e., large cash deposits in the bank account etc. The additions made comprise of the cash deposits and enhancement of quantum thereof in the appellate proceedings. The objection of the assessee has no substance. Hence, Ground no.2 is dismissed.

Summary

Issues Involved:
The issues involved in the judgment are:
1. Enhancement of disallowance by CIT(A) concerning unexplained investment.
2. Validity of proceedings under Section 148 against a struck-off company.
3. Legality of assessment order under Section 143(3) and initiation of proceedings under Section 147.
4. Sustainment of additions without identifying the precise section.
5. Reopening of assessment based on wrong premises.
6. Entertaining additional grounds of appeal.
7. Enhancement of assessed income by CIT(A) from Rs. 42,10,200/- to Rs. 3,69,55,260/-.

1. Enhancement of Disallowance by CIT(A) Concerning Unexplained Investment:
The assessee challenged the enhancement of disallowance by CIT(A) from Rs. 42,10,200/- to Rs. 3,69,55,260/-. The Tribunal observed that CIT(A) failed to provide a reasonable opportunity to the assessee to show cause against the proposed enhancement, which is mandatory under Section 251(2). As there was no opportunity provided, the enhancement made by CIT(A) was deemed unsustainable in law. Therefore, the enhancement by CIT(A) was reversed, and Ground No.1 of the appeal was allowed.

2. Validity of Proceedings under Section 148 against a Struck-off Company:
The assessee contended that the notice under Section 148 was illegal as the company had been wound up by the Registrar of Companies. The Revenue argued that the company's voluntary winding up does not dissolve existing liabilities. The Tribunal referred to relevant judgments and held that the notice under Section 148 was valid, as the company possibly declared itself solvent to opt for voluntary winding up.

3. Legality of Assessment Order under Section 143(3) and Initiation of Proceedings under Section 147:
The assessee raised objections regarding the legality of the assessment order under Section 143(3) and the initiation of proceedings under Section 147. The Tribunal noted that the additions made by the Assessing Officer were based on reasons recorded, such as large cash deposits, and enhancements were made in appellate proceedings. The objections raised by the assessee were deemed unsubstantiated, and the challenge was dismissed.

4. Sustainment of Additions without Identifying the Precise Section:
The Tribunal addressed the issue of sustaining additions without identifying the precise section under which they were covered. It was observed that the additions were made based on cash deposits and enhancements in quantum, which were in line with the reasons recorded. The objection raised by the assessee was found to lack substance, and Ground No.2 was dismissed.

5. Reopening of Assessment Based on Wrong Premises:
The assessee argued that the reopening was carried out for cash deposits but additions were made under Section 69 for unexplained investment, which was beyond the jurisdiction. The Tribunal upheld the order of the CIT(A) in this regard, stating that the basis of additions had been modified subsequent to the reasons recorded under Section 148(2) of the Act.

6. Entertaining Additional Grounds of Appeal:
The Tribunal addressed the issue of entertaining additional grounds of appeal not set forth in the memorandum of appeal. It was highlighted that such grounds must be signed and verified by the appellant as per Section 140 of the Act. The Tribunal declined to grant leave for admission of additional grounds as they were not signed by the appellant, and the power of attorney submitted was deemed invalid.

7. Enhancement of Assessed Income by CIT(A):
The main challenge was the enhancement of assessed income from Rs. 42,10,200/- to Rs. 3,69,55,260/-. The Tribunal clarified that the assessee did not object to the originally assessed income, but specifically challenged the enhancement by CIT(A). The Tribunal found that the enhancement made by CIT(A) without providing a reasonable opportunity to the assessee was unsustainable in law. Consequently, the enhancement by CIT(A) was reversed, and the appeal of the assessee was partly allowed.