2014 (6) TMI 473 - AT - Income Tax

Validity of reassessment u/s 148 of the Act Notice u/s 143(2) of the Act not served Held that - No notice u/s 143(2) was either issued or served on the assessee Following ALPINE ELECTRONICS ASIA PTE LTD. Versus DIRECTOR GENERAL OF INCOME TAX & OTHERS 2012 (1) TMI 100 - DELHI HIGH COURT the reassessment is invalid for not serving mandatory notice u/s 143(2) on the assessee also in PG. FOILS LIMITED Versus INCOME TAX SETTLEMENT COMMISSION AND ANOTHER 2008 (2) TMI 210 - MADRAS HIGH COURT it has been held that the observation of settlement commission in the case of another person to which assessee was not a party could not form basis of reason to believe for reopening of assessee s assessment without inviting objections or explanation from assessee and deciding the same on merits uninfluenced by said observation of Settlement Commission - CIT(A) s direction as far as assessee is concerned has no legal force and cannot be a reason for reopening the assessment - there is no other material available on record with AO to reopen the assessment - the reopening of assessment is bad in law. Change of opinion - Held that - Following Commissioner of Income Tax, Delhi Versus M/s. Kelvinator of India Limited 2010 (1) TMI 11 - SUPREME COURT OF INDIA - the AO has exercised opinion AO made the addition u/s 2(22)(e) - Thus, taking a different view amounts to change of opinion - the reassessment based on change of opinion is bad in law and liable to be set aside Decided in favour of Assessee.

Summary

Issues Involved:
1. Validity of reassessment under Section 148 of the Income Tax Act.
2. Addition of Rs. 6,05,29,778/- under Section 2(22)(e) of the Income Tax Act as deemed dividend.
3. Admission of additional ground regarding non-issuance of notice under Section 143(2).

Detailed Analysis:

1. Validity of Reassessment under Section 148:
The assessee challenged the reassessment under Section 148, arguing that there was no income escaping assessment or requisite satisfaction recorded by the Assessing Officer (AO). The AO initiated reassessment based on the CIT(A)'s order in the case of M/s Navyug Promoters Pvt. Ltd. (NPPL), which directed that deemed dividend income should be assessed in the hands of the director. The CIT(A) upheld the reassessment proceedings, stating that the AO had fresh prima facie material indicating income had escaped assessment. However, the Tribunal found that the CIT(A) could not issue binding directions in another assessee's appeal without giving the affected party an opportunity to be heard, thus violating principles of natural justice. The Tribunal held that the reopening of assessment was bad in law due to lack of independent application of mind by the AO and reliance on the CIT(A)'s directions in another case.

2. Addition of Rs. 6,05,29,778/- under Section 2(22)(e) as Deemed Dividend:
The assessee argued that no loan or advance was received by him and that the transactions were among inter-group companies, thus not justifiable for addition under Section 2(22)(e). The CIT(A) held that the transactions were a facade of business transactions and lifted the corporate veil, concluding that the money was ultimately rotated to benefit the assessee. The Tribunal, however, did not delve into the merits of this issue, as it quashed the reassessment on procedural grounds.

3. Admission of Additional Ground Regarding Non-Issuance of Notice under Section 143(2):
The assessee filed an application to admit an additional ground, arguing that the reassessment proceedings were invalid due to the absence of a mandatory notice under Section 143(2). The Tribunal admitted this ground, noting that it was a pure legal issue requiring no new facts. The Tribunal found that no notice under Section 143(2) was issued or served on the assessee, rendering the reassessment invalid. The Tribunal relied on judgments from the Delhi High Court in Alpine Electronics Asia Pte. Ltd. and V.R. Educational Trust, which held that the absence of a mandatory notice under Section 143(2) invalidates the reassessment.

Conclusion:
The Tribunal quashed the reassessment proceedings on the grounds of non-issuance of mandatory notice under Section 143(2), lack of independent application of mind by the AO, and invalid directions issued by the CIT(A) in another assessee's case. Consequently, the assessee's appeal was allowed, and the reassessment was declared invalid. The Tribunal did not address the merits of the addition under Section 2(22)(e) due to the procedural invalidity of the reassessment.