2018 (9) TMI 1308 - AT - Income Tax

Reopening of assessment - non supply of reasons for reopening - Denial of exemption claimed u/s 10(38) - Held that - We find that the respective assessee had asked for the reasons for reopening of the assessment in a letter dated 13.10.2016 and it is also not in dispute that the reasons for reopening were not supplied to the assessee. The Hon ble Supreme Court in the case of GKN Driveshaft India Ltd vs. ITO (2002 (11) TMI 7 - SUPREME COURT), has clearly held that the AO has to supply the reasons for reopening of the assessment to the assessee, if it is asked for, and if the assessee filed its objections to the said reasons for the reopening, the AO has to dispose of the said objections before proceeding to complete the assessment. In the case before us, clearly such a procedure had not been followed by the AO and even before the CIT (A), the assessee s have not been given the copy of the reasons for reopening. Since the assessee s are already in possession of the reasons for reopening, we are of the opinion that the assessee should be given an opportunity to raise their objections against such reopening, if they so desire - set aside the assessment order to the file of the AO with a direction to allow the assessee to file their objections to the reasons for reopening and upon such receipt, shall dispose of the objections by a speaking order - Decided in favour of assessee for statistical purposes.

Summary

Issues:
Appeal against CIT (A) order for A.Y 2011-12 - Reopening of assessment, denial of exemption u/s 10(38), non-supply of reasons for reopening, application of section 292B and 292BB, sufficiency of evidence, circumstantial evidence, suspicion as proof, human probability theory, statutory interpretation, reliance on case laws.

Detailed Analysis:
1. The appeals before the Appellate Tribunal ITAT Hyderabad involved multiple assessees appealing against the order of the CIT (A) for the assessment year 2011-12. The assessees were related parties, and the issues raised were common, leading to a consolidated order. The primary grounds of appeal included challenges to the confirmation of the assessment order, denial of exemption under section 10(38) of the Income Tax Act, 1961, and the reopening of assessments without supplying reasons, among others.

2. The assessees had reported long-term capital gains on the sale of shares as exempt from income tax under section 10(38) but were suspected to be part of a scheme generating bogus LTCG entries. The Assessing Officer (AO) reopened the assessments under section 147 without providing reasons for reopening to the assessees. The CIT (A) upheld the disallowances made by the AO, citing the assessees' participation in the assessment proceedings as acknowledgment of being aware of the reasons for reopening. The assessees contended that the failure to supply reasons for reopening violated their rights.

3. The Appellate Tribunal noted that the assessees had requested reasons for reopening, which were not provided. Citing the Supreme Court's decision in GKN Driveshaft India Ltd vs. ITO, the Tribunal emphasized the AO's obligation to supply reasons and dispose of objections before completing the assessment. As the assessees had obtained reasons through the RTI Act, the Tribunal directed the AO to allow the assessees to file objections to the reopening, dispose of them, and if necessary, complete the assessment proceedings afresh, ensuring a fair opportunity for the assessees to present relevant documents.

4. The Tribunal set aside the assessments of all assessees with directions for the AO to address objections to the reopening, followed by a fresh assessment if required. The decision aimed to uphold procedural fairness and the assessees' right to challenge the reasons for reopening, emphasizing the importance of providing reasons and allowing for objections before finalizing assessments. The appeals were treated as partly allowed for statistical purposes, ensuring a fair and transparent process in the assessment proceedings.