2017 (6) TMI 1036 - AT - Income Tax

Reopening of assessment - addition of peak credit - Held that - Since in the first assessment order completed u/s. 147, the source of deposits having been examined, on the very same issue the second officer is precluded in reviewing the same and making the addition in a different manner. In view of that, the addition of peak credit in the bank account cannot be sustained. Not only that, assessee has already offered higher income estimating the income at 5% u/s 44AF. The deposits in bank account were within the turnover disclosed by assessee. Therefore, it cannot be stated that the deposits in the bank account are not unaccounted amounts. Since assessee s incomes were accepted u/s 44AF, after due examination of assessee s cash deposits in the first assessment completed u/s. 143(3) r.w.s. 148 vide order dt. 09-02-2009, the addition made in the second assessment order is not sustainable.

Issues:
1. Validity of reopening assessment u/s. 147 after four years.
2. Addition of peak credit in the bank account by the Assessing Officer.
3. Consideration of evidence and submissions by the CIT(A).

Issue 1: Validity of reopening assessment u/s. 147 after four years

The appellant contested the validity of reopening the assessment u/s. 147 after four years, arguing that there was no failure on their part to disclose information. However, the Tribunal noted that this ground was not properly raised before the authorities. The Tribunal highlighted that the appellant did not raise this issue as an additional ground but included it in the regular grounds. As a result, the Tribunal dismissed this ground, stating that it was not properly raised and required further examination of facts.

Issue 2: Addition of peak credit in the bank account by the Assessing Officer

The Tribunal analyzed the addition made by the Assessing Officer and concluded that the AO could not justify the addition. The Tribunal highlighted that in the initial assessment order, the AO had accepted the explanation provided by the appellant regarding the cash deposits in the bank account. Therefore, the Tribunal deemed the reopening of the assessment on the same issue by a different officer as a change of opinion, which is impermissible without intervention by a supervisory authority. The Tribunal emphasized that since the source of deposits had been examined and accepted in the first assessment order, the addition made in the second assessment order was not sustainable. Additionally, the Tribunal noted that the appellant had already offered higher income based on an estimate, and the deposits were within the disclosed turnover. Consequently, the Tribunal ruled in favor of the appellant, directing the AO to delete the amount in question.

Issue 3: Consideration of evidence and submissions by the CIT(A)

The appellant raised objections before the CIT(A), arguing that detailed written submissions had been filed, and evidence had been provided to rebut the AO's conclusions. However, the CIT(A) did not accept these contentions and dismissed the appeal. The appellant contended that the initiation of proceedings u/s. 147 was not valid and that the CIT(A) should have considered that the bank account was shown in the statement of affairs. The Tribunal observed that the CIT(A) did not adequately consider the evidence submitted and passed a reasoned order. Ultimately, the Tribunal partially allowed the appeal, emphasizing the importance of considering all evidence and submissions in such cases.

In conclusion, the Tribunal addressed the issues related to the validity of reopening the assessment, the addition of peak credit in the bank account, and the consideration of evidence by the CIT(A). The Tribunal ruled in favor of the appellant on the grounds of the unsustainable addition made by the Assessing Officer and the importance of properly considering all evidence and submissions in the appeal process.

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