2025 (4) TMI 1485 - AT - Income Tax

Reopening of assessment u/s 147 - Addition u/s 69A - genuine sale consideration received as unexplained money and declared as Long Term Capital Gain in return - HELD THAT - Reasons recorded by the AO is without application of mind and without verification of his own records whether the assessee filed the Return of Income or not. Thus the basis of recoding reason to believe of escapement assessment is nothing but the reproduction of the Investigation Wing report of the department and independent application of mind and verification of record by the AO. There is no failure on the part of the assessee in declaring the LTCG and claim of exemption u/s 10 38 in the original Return of Income filed by the assessee. The very reopening of assessment itself is invalid in law based on the borrowed satisfaction from investigation wing of the department. As relying on Mumtaz Haji Mohmad Memon 2018 (10) TMI 366 - GUJARAT HIGH COURT we have no hesitation in quashing the reassessment notice issued by the AO as invalid in law for not recording independent reason for escapement of income after verification of the facts of the assessee s case. Consequently the reassessment order is hereby quashed. Appeal filed by the assessee is hereby allowed.

Summary

The core legal questions considered in this judgment include:

1. Whether the reopening of assessment under section 147 of the Income Tax Act, 1961 (the Act) was valid, particularly when the assessee had filed the original return of income declaring the relevant capital gains and claiming exemption under section 10(38) of the Act.

2. Whether the addition of the entire sale consideration as unexplained money under section 69A and charging tax under section 115BBE was justified, given the assessee's claim of genuine long-term capital gains from sale of shares.

3. Whether the reopening notice issued under section 148 was based on valid and independent reasons or was merely a "borrowed satisfaction" from the investigation wing without application of mind by the Assessing Officer (AO).

4. Whether principles of natural justice were violated by not providing the assessee with the material and statements used against him during reassessment proceedings.

5. Whether the reassessment order framed under section 144 and section 147 read with section 144B without issuance of valid notice under section 143(2) was valid.

Issue-wise Detailed Analysis:

Validity of Reopening under Section 147

The reopening of assessment is governed by section 147 of the Act, which requires the AO to have a "reason to believe" that income chargeable to tax has escaped assessment. The legal framework mandates that such belief must be based on tangible material and independent application of mind, not merely on information received from third parties or investigation reports.

In this case, the AO issued the reopening notice on the ground that the assessee had not filed return of income and that suspicious transactions aggregating Rs. 57,50,682/- were noticed during search action in the Kushal Group Companies. However, the AO himself admitted in the reassessment order that the assessee had filed the original return declaring long-term capital gains and claiming exemption under section 10(38).

The reasons recorded for reopening did not verify the fact of return filing and merely reproduced the investigation wing's report without independent scrutiny. This amounted to "borrowed satisfaction" which is impermissible under settled legal principles.

Precedents relied upon include two unreported judgments of the jurisdictional High Court, which held that reopening without independent and valid reasons is invalid. In particular, the judgment in Ashishbhai Jashwantbhai Desai HUF vs. ITO emphasized that the AO must form an independent satisfaction based on live-link between information and assessee's records. Similarly, in Mumtaz Haji Mohmad Memon vs. ITO, reopening was quashed where reasons recorded were factually incorrect and based on assumptions contrary to the record.

The Court applied these precedents and concluded that the reopening notice was invalid in law, as the AO failed to apply independent mind and verify facts before recording reasons to believe escapement of income.

Validity of Addition under Sections 69A and 115BBE

The AO treated the entire sale consideration of Rs. 62,42,018/- as unexplained money under section 69A, rejecting the assessee's claim of genuine long-term capital gains exempt under section 10(38). The AO's reasoning was based on the investigation report alleging price rigging and market manipulation by Kushal Group, resulting in bogus gains.

The assessee contended that the shares were genuinely sold and exemption under section 10(38) was rightly claimed. The CIT(A) upheld the AO's addition, treating the shares as "penny stock" and the gains as accommodation entries.

However, since the reassessment itself was quashed for invalid reopening, the addition based on that reassessment also fell away. The Court did not delve deeper into the merits of the addition, as the foundational reopening was invalid.

Principles of Natural Justice and Material Disclosure

The assessee raised grounds that material gathered behind his back and statements of deponents were used against him without providing opportunity for cross-examination, violating principles of natural justice.

The Court noted these contentions but primarily focused on the invalidity of reopening. Since the reassessment order was set aside, these procedural violations were rendered academic in this context.

Validity of Assessment under Sections 144 and 147 read with 144B without Notice under Section 143(2)

The assessee contended that framing of assessment under section 144 (best judgment assessment) and section 147 read with 144B without issuing valid notice under section 143(2) was erroneous.

The Court did not specifically analyze this issue in detail, as the reassessment order was quashed on the ground of invalid reopening. Hence, procedural irregularities in framing assessment did not require separate adjudication.

Summary of Court's Reasoning and Application of Law to Facts

The Court emphasized that reopening of assessment under section 147 requires independent and valid reasons to believe that income has escaped assessment. Merely reproducing investigation reports without verifying the facts on record, especially when the assessee had filed original return declaring the income, is legally impermissible.

The Court found that the AO failed to verify the fact of return filing and relied solely on the investigation wing's report, amounting to borrowed satisfaction. This violated the statutory mandate and judicial precedents.

The Court applied binding decisions of the jurisdictional High Court which quashed reopening notices issued on similar invalid grounds. The Court held that the reassessment proceedings were bad in law and quashed the reassessment order accordingly.

Significant Holdings:

"The reasons recorded by the Ld AO is without application of mind and without verification of his own records, whether the assessee filed the Return of Income or not. Thus the basis of recording reason to believe of escapement assessment is nothing but the reproduction of the Investigation Wing report of the department and independent application of mind or verification of record by the AO."

"The respondent-Assessing Officer has recorded the reasons only on the basis of the borrowed satisfaction without there being any live-link between the information available on the Insight Portal and the data available on the record of the petitioners-assesses."

"In such circumstances, the Assessing Officer cannot be said to have formed an independent satisfaction regarding the reasons recorded to re-open the assessment to come to the prim-facie conclusion that there is escapement of income."

"The reopening of assessment beyond four years is invalid in law and the reassessment is liable to be quashed."

Core principles established include the requirement of independent and valid reasons recorded by the AO for reopening assessment, prohibition on borrowed satisfaction, and the necessity to verify facts such as return filing before initiating reassessment proceedings.

Final determination on each issue is that the reopening notice and reassessment order are invalid and quashed, the additions made in reassessment are set aside, and the appeal filed by the assessee is allowed.