2016 (5) TMI 581 - AT - Income Tax

Reopening of assessment - Reasons to believe - Held that - Rule with regard to furnishing of reasons by the AO is to be followed strictly, as the power given to the AO for reopening of a completed assessment under the Income Tax Act, is an exceptional power and whenever Revenue seeks to exercise such power, it must strictly comply with the prerequisite conditions i.e. Reasons must be recorded and these recorded Reasons must be furnished to the assessee, when sought for, so as to enable the assessee to object to the same, during the course of assessment proceeding. Thus, in absence of Reasons provided by the AO to the assessee, the reassessment order shall be bad in law. The recording of Reasons and furnishing of the same has to be strictly complied with, as it is a jurisdictional issue. This requirement is very salutary as it ensures that reopening is not done in a casual manner. In addition to that, in case reopening has been done on some misunderstanding/misconceptions, then, the assessee is given opportunity to point out that reasons to believe, as recorded in the Reasons , do not warrant reopening, before the assessment proceedings are commenced. The AO can dispose all these objections, and if satisfied with the objections, the impugned reopening notice issued u/s 148 of the Act can be withdrawn; otherwise it can be proceeded with further. In issues, such as this, where jurisdictional issue is involved, the same must be strictly complied with by the authority concerned. Thus we hold that reopening of this case, in the given facts and circumstances of the case, is invalid - Decide in favour of assessee.

Issues Involved:
1. Legality of reopening the assessment.
2. Provision of reasons for reopening to the assessee.
3. Treatment of receipt from the transfer of a trademark as capital gain.

Detailed Analysis:

I. Legality of Reopening the Assessment:

Ground No. I (2):
The assessee challenged the reopening of the assessment on the grounds that the reasons for reopening were not recorded or provided during the reassessment proceedings, despite repeated requests. The assessee argued that the absence of recorded reasons invalidated the reopening.

Arguments by Assessee:
The assessee's counsel argued that the reasons were not recorded in accordance with the law and were not provided despite specific requests. The counsel referred to various documents and affidavits exchanged during the proceedings, pointing out inconsistencies and contradictions in the department's claims. The counsel emphasized that the final facts revealed that no reasons were available in the assessment records, and the reasons were not furnished to the assessee.

Arguments by Revenue:
The Departmental Representative (DR) admitted that reasons were not available in the assessment record but claimed that a copy was available on the computer. The DR argued that the issue was discussed with the assessee's counsel during the assessment proceedings, implying that the gist of the reasons was communicated.

Tribunal's Findings:
The Tribunal noted that extensive efforts were made to ascertain the facts, including the examination of records and affidavits. The Tribunal found that no reasons were available in the assessment record and no certified copy was provided to the assessee. The Tribunal held that without recording and providing reasons, the reopening was invalid, referencing judgments from the Supreme Court and High Courts that mandated the provision of reasons to the assessee.

II. Provision of Reasons for Reopening to the Assessee:

Legal Precedents:
The Tribunal referred to the Supreme Court's judgment in GKN Driveshafts (India) Ltd., which mandates that reasons for reopening must be furnished to the assessee. The Bombay High Court in CIT v. Videsh Sanchar Nigam Ltd. and other cases reiterated this requirement, emphasizing that the reassessment order cannot be upheld if reasons are not provided.

Tribunal's Conclusion:
The Tribunal concluded that the failure to provide reasons to the assessee rendered the reassessment order invalid. The Tribunal emphasized that compliance with this requirement is crucial as it ensures that reopening is not done casually and allows the assessee to challenge the reasons before reassessment proceedings commence.

III. Treatment of Receipt from Transfer of Trademark as Capital Gain:

Grounds No. II (3) and II (4):
The assessee contested the treatment of Rs. 6 crores received from the transfer of the trademark 'Cuticora' as a capital gain, arguing that the transfer occurred before the relevant amendment and should be exempt from tax.

Tribunal's Decision:
Since the Tribunal quashed the reassessment order on legal grounds, it did not adjudicate on the merits of the case, including the treatment of the receipt from the transfer of the trademark.

Conclusion:
The Tribunal allowed the appeal, holding that the reassessment order was invalid due to the failure to record and provide reasons for reopening to the assessee. The Tribunal did not address the merits of the case or other grounds raised by the assessee. The order was pronounced in the open court on October 28, 2015.

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