2017 (8) TMI 955 - AT - Income Tax

Reopening of assessment - Non recording of reasons and furnishing of reasons to the assessee - failure to furnish reasons recorded - Held that - There is no proof of the reasons having been furnished to the assessee. Quite clearly the assessee in the present case had sought for the reasons recorded and there is no material on record to say that the same have been furnished to him before completion of assessment. Therefore, following the judgment of the Hon ble Bombay High Court in Trend Electronics 2015 (9) TMI 1119 - BOMBAY HIGH COURT the impugned assessment is held to be bad in law. In so far as the plea of the Ld. Departmental Representative based on the provisions of section 292BB of the Act is concerned, the same in my view, is of no consequence as it is inserted by the Finance Act, 2008 w.e.f 01/04/2008 and is, therefore, prospective in operation, and is thus, not applicable for the instant proceedings.- Decided in favour of assessee.

Issues Involved:
1. Reopening of assessment under section 148 of the Income Tax Act, 1961.
2. Failure to communicate reasons for reopening the case to the assessee.
3. Violation of natural justice by not providing an opportunity for the assessee to be heard.
4. Addition of ?37,00,000 under section 69 of the Act without independent evidence.
5. Compliance with the provisions of section 147/148 regarding recording and furnishing of reasons to the assessee.

Issue 1: Reopening of assessment under section 148 of the Income Tax Act, 1961:
The appeal pertains to the reopening of the assessment for the assessment year 2007-08 by the Assessing Officer under section 147 of the Income Tax Act, 1961. The appellant challenged the reopening on various grounds, including the failure to communicate the reasons for reopening the case to the assessee. The appellant contended that the reassessment order was bad in law due to the lack of communication of reasons. The Tribunal examined the legal requirement of furnishing reasons to the assessee and referred to relevant judgments, emphasizing the strict compliance needed in such cases. The Tribunal concluded that the failure to furnish reasons, as sought by the assessee, would invalidate the reassessment. As there was no proof of the reasons being supplied to the assessee, the Tribunal held the reassessment order to be bad in law and quashed it.

Issue 2: Failure to communicate reasons for reopening the case to the assessee:
The appellant raised a crucial issue regarding the failure of the Assessing Officer to communicate the reasons for reopening the assessment to the assessee. The appellant argued that this procedural lapse rendered the reassessment order invalid. The Tribunal noted that the legal requirement of furnishing reasons to the assessee is essential for the validity of reassessment proceedings. It cited relevant case law to support the position that the failure to provide reasons, when requested by the assessee, would make the reassessment order bad in law. The Tribunal analyzed the evidence, including a remand report and a reply received under the Right to Information Act, which indicated a lack of proof of reasons being furnished to the assessee. Consequently, the Tribunal held that the reassessment order was invalid due to the failure to communicate reasons to the assessee.

Issue 3: Violation of natural justice by not providing an opportunity for the assessee to be heard:
The appellant contended that there was a violation of natural justice as the assessee was not provided with an opportunity to be heard during the remand proceedings by either the CIT(A) or the Assessing Officer. However, the Tribunal's decision primarily focused on the failure to communicate reasons for reopening the assessment to the assessee, which was deemed a jurisdictional issue. The Tribunal's analysis and subsequent decision centered on the legal requirement of furnishing reasons to the assessee and the consequences of non-compliance with this requirement, rather than on the issue of violation of natural justice in the remand proceedings.

Issue 4: Addition of ?37,00,000 under section 69 of the Act without independent evidence:
Another ground of appeal raised by the appellant was the addition of ?37,00,000 under section 69 of the Act as unexplained investment. The appellant challenged this addition, arguing that the Assessing Officer lacked independent evidence to justify the addition. However, the Tribunal's decision primarily revolved around the procedural irregularity related to the communication of reasons for reopening the assessment, and the subsequent invalidation of the reassessment order on that basis. The Tribunal did not delve into the specifics of the addition under section 69 of the Act, as the primary focus was on the jurisdictional issue of furnishing reasons to the assessee.

Issue 5: Compliance with the provisions of section 147/148 regarding recording and furnishing of reasons to the assessee:
The Tribunal extensively discussed the legal requirement of recording and furnishing reasons to the assessee in cases of reassessment under sections 147/148 of the Income Tax Act, 1961. Citing relevant case law and emphasizing the importance of strict compliance with these provisions, the Tribunal held that the failure to furnish reasons, as requested by the assessee, would render the reassessment order invalid. The Tribunal scrutinized the evidence, including a remand report and a reply under the Right to Information Act, to establish the lack of proof of reasons being communicated to the assessee. Consequently, the Tribunal quashed the reassessment order on the grounds of non-compliance with the statutory requirement of furnishing reasons to the assessee.

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