2017 (2) TMI 990 - AT - Income Tax

Validity of reopening of assessment - reason to believe - Held that - After going through the reasons recorded by the AO, as aforesaid, we are of the view that AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our considered view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the I.T. Act, 1961 on the basis of information allegedly received by him from the Directorate of Income Tax (Inv.), New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of the Assessee.

Issues Involved:
1. Sustaining assessment under section 143(3)/147.
2. Initiation of proceedings under section 147.
3. Basis of information received from OIT (investigation) without independent application of mind.
4. Addition of ?15,00,000 as unexplained cash credit under section 68.
5. Double taxation of the same sum.
6. Reliance on the statement made by Sh. D.N. Taneja.
7. Reliance on the general statement of Sh. S.K. Gupta.
8. Violation of principles of natural justice.
9. Levy of interest under section 234B.

Issue-wise Detailed Analysis:

1. Sustaining assessment under section 143(3)/147:
The assessee contended that the Commissioner of Income Tax (Appeals) erred in sustaining the assessment at an income of ?14,44,800 as against the returned loss of ?55,200. The Tribunal examined the reasons recorded by the Assessing Officer (AO) and found them to be vague and not based on any tangible material. The AO issued the notice under section 148 mechanically based on information received from the Directorate of Income Tax (Investigation), New Delhi.

2. Initiation of proceedings under section 147:
The assessee argued that the initiation of proceedings under section 147 was erroneous as the statutory pre-conditions were not satisfied. The Tribunal agreed, noting that the AO did not independently apply his mind and relied solely on information from the Investigation Wing, which was insufficient to form a reason to believe that income had escaped assessment.

3. Basis of information received from OIT (investigation) without independent application of mind:
The Tribunal found that the AO's reasons for reopening the assessment were based on information from the Investigation Wing without any independent enquiry or application of mind. The reasons recorded were mere suspicions and not based on concrete evidence.

4. Addition of ?15,00,000 as unexplained cash credit under section 68:
The assessee contended that the addition of ?15,00,000 as unexplained cash credit was erroneous as the amount was received from M/s Passion Chits Company Pvt. Ltd. against the sale of shareholding in M/s Alliance Buildcon India Ltd. The Tribunal noted that the necessary documents were filed before the AO and CIT(A), but were ignored, making the addition based on suspicions and surmises.

5. Double taxation of the same sum:
The assessee argued that the same sum was taxed twice, once as sale consideration on the sale of shares and again as undisclosed income. The Tribunal did not specifically address this issue as it quashed the reassessment proceedings on other grounds.

6. Reliance on the statement made by Sh. D.N. Taneja:
The assessee contended that the statement of Sh. D.N. Taneja, who was not a director or shareholder in the appellant company, was wrongly relied upon. The Tribunal found that the AO's reliance on this statement was misplaced as Taneja had no direct connection to the appellant company.

7. Reliance on the general statement of Sh. S.K. Gupta:
The Tribunal found that the AO's reliance on the general statement of Sh. S.K. Gupta was inappropriate as it did not specifically mention any transactions with the appellant company. The statement was general in nature and could not be used as a basis for the addition.

8. Violation of principles of natural justice:
The assessee argued that the CIT(A) made additions without giving a fair and proper opportunity of being heard, violating the principles of natural justice. The Tribunal quashed the reassessment proceedings, implying that the procedural fairness was not upheld.

9. Levy of interest under section 234B:
The Tribunal did not specifically address the issue of interest under section 234B as it quashed the reassessment proceedings on other grounds.

Conclusion:
The Tribunal quashed the reassessment proceedings, finding that the AO had not applied his mind independently and had issued the notice under section 148 based on vague and insufficient information. The appeal was allowed in favor of the assessee, and the other issues were not dealt with as they became academic in nature. The order was pronounced on 10-02-2017.

← Previous Next →