2017 (9) TMI 100 - AT - Income Tax

Reopening of assessment - no notice under section 143(2) having been issued - non-compliance with section 163(2) - no opportunity of being heard was provided to people holding power of attorney on behalf of the assessee - protective addition in hands of power of attorney - Held that - Since the beginning of the proceeding on January 28, 2015 nothing has been brought on record to prove that any such opportunity of being heard was provided to Shri Muzarraf Shah and Shri Akram Shah who were holding power of attorney on behalf of the assessee. This is a clear non-compliance with section 163(2) of the Act. AO has made protective addition in the hands of both the agents namely Shri Muzarraf Shah and Shri Akram Shah at ₹ 16,63,000 and no substantive addition has been made. For a protective addition to stand for, there has to be a substantive addition. Assessing Officer has proceeded in this matter in a haste and without complying with the necessary provisions of law and not providing any opportunity of being heard by merely observing that he had no other option except to pass the order u/s 144 as the matter was getting time barred. We are of the considered opinion that limitation of time in the hands of the Assessing Officer to frame the assessment cannot give him the power to make high pitched assessment without providing proper opportunity of being heard and not complying with the necessary provisions of the Act. We are therefore, of the view that the order passed under section 144/147 is not valid and needs to be quashed. - Decided in favour of assessee.

Summary

Issues:
Challenging the validity of reassessment under section 144/147, Notice under section 148 not issued, Failure to provide opportunity to agents, Protective addition without substantive addition, Compliance with section 163(2) of the Act.

Analysis:

Challenging the Validity of Reassessment under Section 144/147:
The appeals pertain to the assessment year 2007-08 and challenge separate orders of the Commissioner of Income-tax (Appeals) dated September 27, 2016, under section 144/147 of the Income-tax Act. The Tribunal consolidated the appeals for convenience. The primary contention raised by the assessee is that the reassessment under section 144/147 is without jurisdiction and should be quashed. The Tribunal examined the legal grounds challenging the validity of the assessment order.

Notice under Section 148 not Issued:
The Tribunal noted that no notice under section 148 was issued by the Assessing Officer before proceeding with the assessment under section 147. The absence of such a notice, a procedural requirement, was acknowledged by the Revenue as well. The failure to issue a notice under section 148 was a crucial factor in determining the validity of the reassessment.

Failure to Provide Opportunity to Agents:
The Tribunal observed that the Assessing Officer did not provide an opportunity to the agents, Shri Muzarraf Shah and Shri Akram Shah, before treating them as agents of the non-resident. This lack of opportunity violated the provisions of section 163(2) of the Act, which mandates that a person must be heard by the Assessing Officer regarding their liability to be treated as an agent of a non-resident.

Protective Addition without Substantive Addition:
The Tribunal highlighted that the Assessing Officer made a protective addition in the hands of the agents without any substantive addition. For a protective addition to be valid, there must be a substantive addition, which was lacking in this case. The Tribunal found that the Assessing Officer proceeded hastily without following the necessary legal provisions.

Compliance with Section 163(2) of the Act:
The Tribunal emphasized the non-compliance with section 163(2) of the Act, which requires the Assessing Officer to provide an opportunity to individuals before treating them as agents of non-residents. The failure to adhere to this provision rendered the assessment order invalid.

Conclusion:
The Tribunal concluded that the assessment orders under section 144/147 were not valid due to the failure to issue a notice under section 148, lack of opportunity provided to the agents, and the absence of substantive additions. As a result, the Tribunal allowed the appeals, quashing the assessment orders dated March 3, 2015, for both agents. Since the assessment proceedings were quashed, the Tribunal did not delve into the merits of the case, deeming it academic in nature.