2016 (9) TMI 806 - AT - Income Tax

Reopening of assessment - loss claimed on the gross receipts - assessee has maintained books of accounts are required u/s 44AA(2) but had not got the accounts audited as required u/s 44AB - Held that - In the present case, since initiation of reassessment proceedings is beyond 4 years from the assessment year, therefore unless and until it is observed and found that the income has escaped assessment due to the failure on the part of the assessee to disclose truly and fully all material facts for the assessment, the AO is not authorized to make reassessment. In the present case, it is a fact that assessee has claimed loss of ₹ 1,33,970/- on the gross receipts of ₹ 5,54,103/- from construction activities. As per the provisions of s. 44AD of the Act, an Assessee can claim lower profits and gains (i.e less than 8% of the gross receipts) only if he keeps and maintains such books of accounts and other documents as required u/s 44AA(2) of the Act and gets his accounts audited and furnishes a report of such audit as required under s. 44AB of the Act. In the present case, though the assessee has maintained books of accounts are required u/s 44AA(2) but had not got the accounts audited as required u/s 44AB of the Act, which according to us was a failure on the part of the assessee to comply with the requirement of section 44AD of the Act and thereby claim loss. In such a situation, we are of the view that no interference to the order of the ld.CIT(A) in confirming the action of reopening the assessment on the part of AO is called for. Further, the decision relied upon by assessee are on different facts and are therefore not applicable to the present case. - Decided against assessee.

Summary

Issues:
1. Validity of reassessment framed by the AO.
2. Applicability of Section 44AD and requirement for audit under Section 44AB.
3. Jurisdiction to reopen an assessment under Section 147 of the Act.

Issue 1: Validity of reassessment framed by the AO:
The appeal challenged the validity of the reassessment framed by the Assessing Officer (AO). The appellant argued that the change of opinion leading to the reopening of the assessment was impermissible. The contention was based on the acceptance of the loss in the original assessment under Section 143(3). The appellant cited a decision from the Indore Tribunal to support their position. However, the AO and CIT(A) supported the reassessment. The Tribunal examined the facts and concluded that the reassessment was justified. The law on reopening assessments was considered, emphasizing that the AO can only reopen an assessment under specific conditions outlined in Section 147 of the Act. In this case, since the reassessment was initiated beyond four years from the relevant assessment year, it was crucial to establish that income had escaped assessment due to the assessee's failure to disclose material facts. As the assessee had not complied with the requirements of Section 44AD by failing to get the accounts audited as mandated under Section 44AB, the Tribunal upheld the validity of the reassessment, dismissing the appellant's argument.

Issue 2: Applicability of Section 44AD and requirement for audit under Section 44AB:
The dispute revolved around the applicability of Section 44AD and the necessity for audit under Section 44AB. The AO reopened the assessment due to the assessee's failure to get the accounts audited as required by Section 44AB, despite declaring a loss. The appellant contended that Section 44AD was voluntary, not mandatory, and argued against the calculation of total income based on Section 44AD provisions. The appellant also claimed that since a loss was declared, the requirement for a lower profit or gain did not arise, thus negating the need for an audit under Section 44AB. The Tribunal analyzed the provisions of Section 44AD and the requirement for audit under Section 44AB. It noted that while the turnover was below 40 lakhs, the appellant had not audited the accounts as mandated by Section 44AB, leading to the AO's application of Section 44AB to compute the income. The Tribunal affirmed the AO's action, emphasizing the necessity for compliance with the provisions of Section 44AD and Section 44AB to determine taxable income correctly.

Issue 3: Jurisdiction to reopen an assessment under Section 147 of the Act:
The issue of jurisdiction to reopen an assessment under Section 147 of the Act was central to the case. The Tribunal highlighted the conditions that must be met for the AO to reopen an assessment, including the belief that taxable income had escaped assessment. In cases where the reassessment is beyond four years from the relevant assessment year, the failure of the assessee to fully disclose material facts becomes crucial. The Tribunal found that the assessee's failure to comply with the audit requirement under Section 44AB constituted a lack of full disclosure of material facts, justifying the AO's decision to reopen the assessment. The Tribunal dismissed the appellant's argument regarding the change of opinion and upheld the AO's jurisdiction to reassess the income, concluding that the reassessment was valid within the provisions of Section 147 of the Act.

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