2017 (11) TMI 1221 - HC - Income Tax

Reopening of assessment - invalid notice as the notice was not preceded by valid approval based upon proper application of mind by the concerned Commissioner; secondly, it was not served in the proper manner and was rather served allegedly through affixation and Lastly the reasons to believe furnished are not premised upon any tangible material - Held that - This Court notices that for the two assessment years 2008-09 and 2010-11, the judgment rendered clearly found that identical notices under Section 147/148 of the Income Tax Act, 1961 did not measure up to the standards of a valid opinion based upon tangible material, as clarified by the ruling in Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ). The same logic in our opinion is applicable in the present case. Furthermore, the reference by the Revenue to the third paragraph of the reasons to believe in this case is of no consequence. The basic or necessary facts which led the AO to form the opinion are contained in the second paragraph of the impugned notice, i.e., the Investigation Wing s report. The wording and rationale in the impugned notice is identical to that in the previous years case as well as for the AY 2010-11. The basic premise upon which the Revenue can issue a valid notice is if tangible material is unearthed after the completion of assessment - or intimation is made under Section 143 (1) in the given facts of the case. This is because of the non-obstante clause. In other words whether there is a completed assessment under Section 143 (3) or intimation under Section 143 (1), the essential pre-requisite for existence of tangible material has to be fulfilled. In the present case, clearly this pre-requisite was not fulfilled. Consequently, the impugned order cannot stand; it is hereby quashed - Decided in favour of assessee.

Summary

Issues:
Reassessment notice validity challenged based on vague rationale and lack of tangible material.

Analysis:
The petitioner challenged a reassessment notice issued for the assessment year 2007-08, arguing that it lacked a valid approval, was improperly served, and the reasons provided were vague. The Assessing Officer's reasons to believe income had escaped assessment were based on unexplained cash deposits and withdrawals, which the assessee failed to explain satisfactorily. The petitioner contended that the notice did not meet the standards required under Section 147/148 of the Income Tax Act. The respondent argued against entertaining the petition, stating that the proviso to Section 147 was inapplicable as the assessment was not completed after scrutiny but accepted as a return intimation. The respondent also defended the approval process and the mode of service through affixation, citing relevant case law.

The Court observed that previous judgments for other assessment years found similar notices under Section 147/148 to be invalid for lacking tangible material, as clarified by the Supreme Court ruling in Commissioner of Income Tax vs. Kelvinator of India Ltd. The Court found the rationale in the impugned notice to be identical to previous cases and lacking necessary tangible material post-assessment or intimation under Section 143 (1). As the essential pre-requisite for tangible material was not met in the present case, the reassessment notice was deemed invalid and quashed. The writ petition was allowed in favor of the petitioner.