2018 (2) TMI 51 - AT - Income Tax

Reopening of assessment - payment of on money was made by the assessee for purchase of flats - Held that - The reassessment proceedings initiated by the A.O beyond a period of four years from the end of the assessment year without making a mention in the reasons to believe that the income of the assessee chargeable to tax had escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for framing of assessment cannot be sustained and on the said count too is liable to be vacated. We are of the considered view that there is substantial force in the contention of the ld. A.R that mere admission of the amounts recorded in the pen drive as the additional income by Sh. Niranjan Hiranandani falling short of any such material which would inextricably evidence payment of on money by the assessee would not lead to drawing of adverse inferences as regards the investment made by the assessee for purchase of the property under consideration. A strong conviction that the very fact that the consideration paid by the assessee for purchase of the property under consideration when pitted against the market value fixed by the stamp valuation authority is found to be substantially high further fortifies the veracity of the claim of the assessee that his investment made towards purchase of the property under consideration was well in order. We are of the considered view that though the material acted upon by the department for drawing of adverse inferences as regards payment of on money by the assessee formed a strong basis for doubting the investment made by the assessee for purchase of the property under consideration but the same falling short of clinching material which would have irrefutably evidenced the said fact thus does not inspire much of confidence as regards the way they have been construed by the lower authorities for drawing of adverse inferences in the hands of the assessee. the adverse inferences drawn by the A.O as regards payment of on money of 2.23 crore by the assessee for purchase of Flat No. 2501 from M/s Lakeview Developers are based on of premature observations of the A.O which in the absence of any clinching evidence cannot be sustained. - Decided in favour of assessee.

Issues Involved:
1. Validity of reopening the assessment under Section 147 of the Income Tax Act.
2. Validity of reassessment proceedings without providing the exact reasons recorded for reopening and the necessary approval under Section 151(1).
3. Validity of reopening the assessment after four years without proving the failure to disclose material facts.
4. Addition of ?2,23,00,000/- as unexplained investments under Section 69B.
5. Reliance on details available in a pen drive and statements made under Section 132(4).
6. Validity of addition based on cross-examination of Shri Niranjan Hiranandani.

Detailed Analysis:

1. Validity of Reopening the Assessment under Section 147:
The assessee challenged the reopening of the assessment on the grounds that the original assessment was completed under Section 143(3) and the reopening was done after four years without proving any failure on the part of the assessee to disclose fully and truly all material facts. The Tribunal observed that the reopening was based on information received from the Director General of Income-tax (Inv.), Mumbai, regarding "on money" payments made by the assessee to Hiranandani Group for property purchases. However, the Tribunal noted that the reasons recorded for reopening did not mention any failure on the part of the assessee to disclose material facts, which is a mandatory requirement for reopening after four years. Hence, the reopening was held invalid.

2. Validity of Reassessment Proceedings Without Providing Exact Reasons and Necessary Approval:
The assessee contended that the reopening was done without providing the exact reasons recorded for reopening and the necessary approval under Section 151(1). The Tribunal found that the approval was obtained from the Joint Commissioner of Income-tax instead of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as required under Section 151(1). The Tribunal held that this procedural lapse invalidated the reassessment proceedings, as the approval from the appropriate authority is a sine qua non for valid assumption of jurisdiction.

3. Validity of Reopening the Assessment After Four Years:
The Tribunal reiterated that the reopening of the assessment after four years requires proving the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. As the reasons recorded did not mention such failure, the Tribunal held that the reopening was invalid and could not be sustained.

4. Addition of ?2,23,00,000/- as Unexplained Investments under Section 69B:
The addition was based on information from a pen drive seized during search and seizure operations on the Hiranandani Group, which allegedly showed "on money" payments by the assessee. The Tribunal found that the information from the pen drive lacked material facts such as the date and mode of receipt of "on money," the payer, the recipient, and the date of the agreement. The Tribunal also noted that the consideration paid by the assessee for the property was higher than the market value determined by the sub-registrar, which ruled out the possibility of "on money" payments. Therefore, the addition of ?2,23,00,000/- was held to be unjustified.

5. Reliance on Details Available in a Pen Drive and Statements Made Under Section 132(4):
The Tribunal observed that the pen drive's contents did not conclusively prove the payment of "on money" by the assessee. The Tribunal also noted that Shri Niranjan Hiranandani, in his cross-examination, could not provide any evidence of the assessee's payment of "on money." The Tribunal held that the reliance on the pen drive and statements made under Section 132(4) was insufficient to justify the addition.

6. Validity of Addition Based on Cross-Examination of Shri Niranjan Hiranandani:
The Tribunal found that Shri Niranjan Hiranandani's cross-examination did not provide any conclusive evidence of the assessee's payment of "on money." The Tribunal noted that he was unaware of the person who made the entries in the pen drive and had no proof of the assessee's cash payments. Therefore, the Tribunal held that the addition based on his cross-examination was invalid.

Conclusion:
The Tribunal quashed the reassessment proceedings due to the invalid assumption of jurisdiction and procedural lapses. The addition of ?2,23,00,000/- as unexplained investments was also set aside due to lack of conclusive evidence. The appeal of the assessee was allowed.

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