2018 (8) TMI 1434 - HC - Income Tax

Reopening of assessment - reason to believe - protective assessment made - assessee had declared the income under the income tax declaration scheme 2016 - genuineness of share application money - AO had no information at his command to come to the conclusion that the investment owned up and declared by Garg Logistics Pvt Ltd. was not from the funds of the said declarant but was in fact, the unaccounted income of the assessee company. Held that - Quite apart from impermissiblity of casting such burden on the assessee, we wonder at which stage would the assessee discharge such burden. Return was accepted without scrutiny. Before issuing impugned notice, no information was called from the assessee by the Assessing Officer. The reasons so recorded simply lack validity. - The conclusions are based on surmises and conjectures which are not permissible in law and not backed by any material on record. This is so for an amount of ₹ 6.25 crores of share capital investment. Scope of income tax declaration scheme 2016 - The Scheme thus makes detailed provisions for declaration of income which hitherto was either undisclosed or not charged to tax. Upon such declaration being accepted, declarant would pay tax at the prescribed rate with surcharge and penalty. Upon such amounts being paid, declarant would receive certain immunities. The income so declared would not be included in the total income of any assessment year. Even Benami transactions would not be targeted. The scheme thus appears to have been framed to encourage disclosures of unaccounted income. Upon acceptance of such disclosure, Revenue would collect tax, surcharge and penalty at the prescribed rates. In turn, the declarant would have peace of mind and certain immunities. In the present case, same amount which the Assessing Officer wishes to tax in the hands of the petitioner company by resorting to reopening of assessment was declared by Garg Logistics Pvt Ltd. under such declaration. Declaration was accepted by the competent authority pursuant to which Garg Logistics Pvt Ltd. in three installments also deposited the entire amount of tax with surcharge and penalty. Any attempt on part of the Assessing Officer to assess the same income in the hands of assessee would amount to charging the same income twice. It can thus be seen that upon an assessee in whose hands the income is charged, files a declaration, the protective assessment in hands of another assessee would automatically abate, clearly indicating the intention of charging tax on the same income only once. - Decided in favor of assessee.

Issues Involved:
1. Validity of the notice to reopen the assessment.
2. Reason to believe that income chargeable to tax had escaped assessment.
3. Double taxation of the same income.
4. Reliance on the declaration made under the Income Declaration Scheme (IDS) 2016.
5. Burden of proof on the assessee company.
6. Utilization of statements made under the IDS for reopening assessment.

Detailed Analysis:

1. Validity of the Notice to Reopen the Assessment:
The petitioner challenged a notice dated 31.3.2017 issued by the respondent Assessing Officer to reopen the petitioner’s assessment for the assessment year 2010-2011. The petitioner’s return for the said year was initially accepted under section 143(1) of the Income Tax Act, 1961 without scrutiny. The notice to reopen was based on information obtained during a search under section 132 of the Act on 20.9.2016, which revealed undisclosed cash utilized for investment in the petitioner company’s share capital.

2. Reason to Believe that Income Chargeable to Tax Had Escaped Assessment:
The Assessing Officer recorded reasons for reopening the assessment, noting that Garg Logistics Pvt Ltd disclosed an undisclosed cash amount of ?6.36 crores, which was invested in the petitioner company. The officer believed that this amount was the petitioner’s unaccounted income introduced through accommodation entries. However, the court found that the reasons lacked a tangible link connecting the funds to the petitioner company. The court emphasized that the requirement for the Assessing Officer to have "reason to believe" that income had escaped assessment applies even when the initial return was accepted without scrutiny.

3. Double Taxation of the Same Income:
The petitioner argued that the amount in question had already been disclosed by Garg Logistics Pvt Ltd under the IDS 2016, accepted by the department, and full tax with penalty was paid. The court agreed, stating that any attempt to assess the same amount in the hands of the petitioner would result in double taxation, which is impermissible.

4. Reliance on the Declaration Made Under the Income Declaration Scheme (IDS) 2016:
The court noted that the declaration made by Garg Logistics Pvt Ltd under the IDS 2016 was accepted, and tax with surcharge and penalty was paid. The court expressed doubt over the permissibility of using such a declaration to reopen the petitioner’s assessment, as it would go against the scheme’s intention to charge tax on the same income only once.

5. Burden of Proof on the Assessee Company:
The court criticized the Assessing Officer for shifting the burden of proof onto the petitioner company to establish that the declared amount was not its unaccounted income. The court found this approach flawed, emphasizing that the Assessing Officer must have tangible material to form a belief that income had escaped assessment, rather than relying on conjectures and surmises.

6. Utilization of Statements Made Under the IDS for Reopening Assessment:
The court questioned the logic of using the commission of ?11 lacs declared by Garg Logistics Pvt Ltd under the IDS to infer undisclosed expenditure by the petitioner. The court found no basis for the Assessing Officer’s belief that the commission was paid by the petitioner, especially when the primary belief that the share capital investment was the petitioner’s unaccounted income lacked tangible support.

Conclusion:
The court set aside the impugned notice, concluding that the reasons recorded by the Assessing Officer lacked validity and were based on impermissible assumptions. The petition was allowed, preventing the reopening of the petitioner’s assessment for the assessment year 2010-2011.

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