2023 (6) TMI 920 - AT - Income Tax

Reopening of assessment u/s 147 - reason to believe -reopening on wrong facts - AO proceed to assess income under some other issue independently - Addition on account of increase in share capital being share capital issued by the company - HELD THAT - AO has reopened the assessment based upon wrong facts, wrong appreciation of facts and without any application of mind, in as much as, the assessee has not taken any credit entry from White Collar Management Ltd. We find that the AO has gone one step further and has made addition being the increase in share capital from Rs. 25 lakhs to Rs. 2 crores, which has nothing to do with the reopening of the assessment, which means that on the one hand the AO has reopened the assessment on wrong facts and on the other hand, the AO has completed assessment on totally irrelevant facts which were never confronted to the assessee. A perusal of the reasons recorded, for reopening of assessment clearly shows that the AO has reasons to believe that the assessee was beneficiary of accommodation entry from White Collar Management Ltd. Strictly keeping in mind the reasons for reopening, assessment has been concluded by making addition on account of increase in share capital being share capital issued by the company to Shri Gautam Goyal, Shri Gaurav Goyal and Saraswati Properties, Goyal Investment and Shudd Edible Products Ltd. Individuals are directors of the assessee company and corporate investors are part of the group. Since the additions have been made other than the reasons recorded for reopening assessment, in our considered view, the Assessing Officer has drawn support from Explanation 3 to section 147 of the Act which was inserted by the Finance No. 2 Act, 2009 We find that the Assessing Officer has accepted the objections of the assessee, and has not assessed or reassessed the income, which was the basis of the notice. Therefore, in light of the judgment of JET AIRWAYS (I) LTD. 2010 (4) TMI 431 - HIGH COURT OF BOMBAY it would not be open to the Assessing Officer to assess income under some other issue independently. No merit in the re assessment proceedings initiated by AO on wrong facts and therefore, the said assessment order deserves to be quashed. Decided in favour of assessee.

Summary

Issues Involved:
1. Assumption of Jurisdiction under Section 147 read with Section 148.
2. Basis of Reassessment Proceedings.
3. Ex-parte Assessment Order under Section 144.
4. Addition of Rs. 1,75,00,000.
5. Non-appreciation of Evidence.

Summary:

1. Assumption of Jurisdiction under Section 147 read with Section 148:
The assessee contended that the jurisdiction assumed by the AO under Section 147 read with Section 148 was erroneous as no enquiry was conducted to verify any transaction with M/s White Collar Management Pvt. Ltd. The Tribunal found that the AO had reopened the assessment based on incorrect facts and without proper application of mind, as the assessee had not taken any credit entry from White Collar Management Ltd.

2. Basis of Reassessment Proceedings:
The reassessment was based on vague information and solely on the report of the Investigation Wing. The Tribunal noted that the AO did not form his own opinion and acted mechanically. The specific objections raised by the assessee were not addressed by the AO or the CIT(A), demonstrating a lack of proper consideration.

3. Ex-parte Assessment Order under Section 144:
The assessee argued that the ex-parte assessment order was passed without proper service of notice under Section 142(1)/144 and without any show cause notice. The Tribunal did not dwell into this issue separately as the reassessment proceedings were quashed on other grounds.

4. Addition of Rs. 1,75,00,000:
The Tribunal observed that the AO made an addition of Rs. 1.75 crores on account of an increase in share capital, which was unrelated to the reasons for reopening the assessment. The AO's action was found to be beyond the scope of the reasons recorded for reopening, rendering the addition invalid.

5. Non-appreciation of Evidence:
The assessee claimed that the addition was made without appreciating the evidence on record and without providing a proper opportunity to present the evidence. The Tribunal found merit in this argument as the AO did not consider the specific objections and evidence provided by the assessee.

Legal Precedents:
The Tribunal referred to the judgments in CIT Vs. Jet Airways [I] Ltd 331 ITR 236 and Ranbaxy Laboratories Limited versus CIT, (2011) 336 ITR 136 (Delhi), which clarified that if the income, which was the basis for reopening, is not assessed, the AO cannot independently assess other income that comes to notice subsequently.

Conclusion:
The Tribunal quashed the reassessment proceedings initiated by the AO on wrong facts and without proper application of mind. Consequently, the assessment order was quashed, and the appeal of the assessee was allowed. The Tribunal also condemned the attitude of the Departmental Representative for inadequate preparation and representation.

Result:
The appeal of the assessee in ITA No. 3877/DEL/2019 is allowed.