2016 (12) TMI 1558 - HC - Income Tax

Validity of reopening of assessment - reopening of the assessment is on the information / data supplied by the office of the Principal Director of Income Tax (Investigation), Ahmedabad vide his confidential letter - non application of individual mind by AO - Held that - The material on the basis of which the A.O. seeks to assume the jurisdiction under section 147 if the Act is the information received from the external source viz. the Principal Director of Income Tax (Investigation), Ahmedabad. It cannot be disputed that on the basis of the information received from another agency, there cannot be any reassessment proceedings. However, after considering the information / material received from other source, A.O. is required to consider the material on record in case of the assessee and thereafter is required to form an independent opinion on the basis of the material on record that the income has escaped assessment. Without forming such an opinion, solely and mechanically relying upon the information received from other source, there cannot be any reassessment for the verification. At this stage it is required to be noted that even in the reasons recorded, there is no allegation that there was any failure on the part of the assessee in not disclosing truly and fully material facts necessary for assessment. Under the circumstances, the assumption of the jurisdiction to reopen the assessment beyond the period of four years in exercise of powers under section 147 of the Act is bad in law and contrary to the provisions of section 147 of the Act. Under the circumstances, on the aforesaid ground alone, the impugned reassessment proceedings deserve to be quashed and set aside. - Decided in favour of assessee

2015 (11) TMI 934 - HC

Issues Involved:
1. Validity of the notice issued under section 148 of the Income Tax Act, 1961.
2. Legality of reopening the assessment for A.Y. 2009-2010 under section 147 of the Act.
3. Adequacy of the reasons provided for reopening the assessment.
4. Requirement of independent opinion by the Assessing Officer (A.O.) for reopening the assessment.
5. Compliance with the proviso to section 147 regarding the failure to disclose material facts.

Detailed Analysis:

1. Validity of the notice issued under section 148 of the Income Tax Act, 1961:
The petitioner challenged the notice issued under section 148 of the Income Tax Act, 1961, arguing that it was "bad in law and without jurisdiction." The petitioner contended that the reasons for reopening were ambiguous and did not reveal any income that had escaped assessment due to any failure on the part of the petitioner to fully disclose all material facts.

2. Legality of reopening the assessment for A.Y. 2009-2010 under section 147 of the Act:
The petitioner argued that the reopening was based on statistical measures foreign to the Income Tax Act and that there was no independent forming of opinion by the A.O. The petitioner also highlighted that the reopening was based on information from the investigation wing without any independent verification by the A.O., which constitutes "borrowed satisfaction" and is not permissible.

3. Adequacy of the reasons provided for reopening the assessment:
The reasons recorded for reopening the assessment were scrutinized. The A.O. received information from the Principal Director of Income Tax (Investigation) indicating that the petitioner carried out share trading through a broker and that there were modifications in the client code. The A.O. applied Lavenshtein Distance Analysis to determine the genuineness of these modifications and concluded that the changes were deliberate and not genuine. However, the court found that the reasons recorded did not indicate any independent formation of opinion by the A.O. that income had escaped assessment due to the petitioner's failure to disclose material facts.

4. Requirement of independent opinion by the Assessing Officer (A.O.) for reopening the assessment:
The court emphasized that for reopening an assessment, the A.O. must independently form an opinion based on the material on record that income has escaped assessment. The court found that the A.O. had mechanically relied on the information received from the Principal Director of Income Tax (Investigation) without forming an independent opinion, which is not permissible.

5. Compliance with the proviso to section 147 regarding the failure to disclose material facts:
The court noted that the impugned notice was issued beyond the period of four years. According to the proviso to section 147, reopening beyond four years is not permissible unless there is a failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. The court found no allegation in the reasons recorded that the petitioner had failed to disclose material facts. Therefore, the assumption of jurisdiction to reopen the assessment was deemed "bad in law and contrary to the provisions of section 147 of the Act."

Conclusion:
The court concluded that the impugned notice under section 148 and the reopening of the assessment for A.Y. 2009-2010 were not sustainable. The court quashed and set aside the notice and reassessment proceedings, making the rule absolute with no order as to costs.

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