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2024 (4) TMI 886 - AT - Income TaxReopening of assessment u/s 147 - non independent application of mind by AO - Scope of borrowed satisfaction - information received from Asst. DIT-(Investigation), Unit 2(1), Kolkata, AO was informed that large value of cash was deposited into several bank accounts maintained with ICICI Bank which were immediately transferred to other bank accounts - HELD THAT - Entire reopening is based on the assumption that assessee has been benefited by the impugned / alleged colorable transactions but without any backing of any demonstrative evidences to show that the assessee has purchased cheque from Wheelers Developers Pvt Ltd., by paying cash to it. We find that the entire process of reopening is based upon only and only the investigation report from ADIT (Investigation), Kolkata. We are of the considered view that the AO has not applied his mind before issuing notice u/s 148. Assuming, yet not accepting, that the assessee is a beneficiary, then we are unable to understand how a loan amount can be a matter of escapement of income u/s 148 for the simple reason that loan amount is a capital receipt and the only liability cast upon the assessee is to discharge the onus cast upon it by the provisions of section 68 - We find that the conclusions of the AO are at best the reproduction of the conclusions in the investigations report and indeed it is a borrowed satisfaction . The impugned notice issued u/s 148 of the Act is bad in law and accordingly, we set-aside assessment order framed pursuant to the said notice is quashed. The appeal of the assessee is allowed.
Issues Involved:
1. Validity of notice u/s 148 of the Income Tax Act, 1961. 2. Justification of reopening the case u/s 147 of the Income Tax Act, 1961. 3. Addition of income on account of unexplained credit u/s 68 of the Income Tax Act, 1961. 4. Legality of the orders passed by the Ld. CIT(A) and the Ld. AO. Summary: Issue 1: Validity of notice u/s 148 of the Income Tax Act, 1961 The primary challenge was against the reopening of the assessment by the issue of notice u/s 148 of the Income-tax Act, 1961. The Assessing Officer (AO) issued the notice based on information from the Asst. DIT (Investigation), Kolkata, regarding large cash deposits in ICICI Bank accounts, which were subsequently transferred to other accounts. The AO presumed that the assessee was a beneficiary of these transactions. However, the Tribunal found no mention of the assessee in the provided lists of parties involved in these transactions. The reopening was deemed based on assumptions without demonstrative evidence, constituting "borrowed satisfaction". The Tribunal held that the AO did not apply his mind independently before issuing the notice, rendering the reopening invalid. Issue 2: Justification of reopening the case u/s 147 of the Income Tax Act, 1961The Tribunal noted that the entire reopening was based solely on the investigation report from the ADIT (Investigation), Kolkata, without any independent verification or inquiry by the AO. The Tribunal cited the Hon'ble Delhi High Court's rulings in Meenakshi Overseas Pvt Ltd. and PCIT v. RMG, emphasizing that the AO must demonstrate a link between tangible material and the belief that income has escaped assessment. The Tribunal concluded that the AO's actions were merely a reproduction of the investigation report's conclusions. Issue 3: Addition of income on account of unexplained credit u/s 68 of the Income Tax Act, 1961The Tribunal observed that the assessee had shown an advance against property from Wheelers Developers Pvt Ltd., which was the basis for the reopening. Upon inquiry, Wheelers Developers Pvt Ltd. confirmed the transaction and provided supporting documents, contradicting the AO's claim of cash deposits. The Tribunal found no evidence to support the AO's conclusions and deemed the reopening based on incorrect information. Issue 4: Legality of the orders passed by the Ld. CIT(A) and the Ld. AOThe Tribunal highlighted the improper handling of the assessee's objections to the reopening. The objections were not fully addressed by the AO, violating the principles laid down by the Hon'ble Jurisdictional Bombay High Court in KSS Petron Private Ltd. v. ACIT. The Tribunal quashed the assessment order framed pursuant to the invalid notice u/s 148, rendering it unnecessary to delve into the merits of the case. Conclusion:The Tribunal concluded that the notice u/s 148 was bad in law, quashed the assessment order, and allowed the appeal. The reliance on the decision of the Hon'ble Supreme Court in ACIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. was found inapplicable to the facts of this case.
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