2018 (10) TMI 1597 - AT - Income Tax

Validity of reassessment proceedings - reopening after the expiry of four years from the end of the assessment year - addition made treating income from sale of shares as income from other sources instead of income from capital gains - information received from the Investigation Wing, which was gathered during the search and seizure action - non independent application of mind by AO - borrowed information - Held that - Though the information received from the Investigation Wing was subsequent to the original assessment passed U/s 143(3) read with Section 147 of the Act on 25/8/2009, however, the Assessing Officer himself has not alleged in the reasons recorded that there is failure on the part of the assessee to disclose fully and truly all relevant material facts necessary for assessment. Therefore, once the Assessing Officer himself has not stated in the reasons that there is a failure on the part of the assessee to disclose fully and truly all relevant facts necessary for assessment then the reopening of assessment after four years from the end of the assessment year is not permitted as hit by proviso to Section 147 - Quash the reopening of the assessment being invalid - decided in favour of assessee.

Issues Involved:
1. Validity of reopening of the assessment after the expiry of four years.
2. Treatment of income from the sale of shares as income from other sources instead of capital gains.
3. Disallowance of exemption under Section 54EC of the Income Tax Act, 1961.
4. Disallowance of exemption under Section 54F of the Income Tax Act, 1961.

Issue-Wise Detailed Analysis:

1. Validity of Reopening of the Assessment:
The primary issue was whether the reopening of the assessment after four years from the end of the assessment year was valid. The assessee filed a return of income on 31/10/2005, which was processed under Section 143(1) and subsequently assessed under Section 143(3) read with Section 147 on 25/08/2009. The reassessment was initiated based on information received from the Investigation Wing concerning transactions with M/s Mahasagar Securities Pvt. Ltd., which were deemed not real. The assessee argued that all relevant facts were fully disclosed during the original assessment, and thus, the reopening after four years was invalid as per the proviso to Section 147. The Tribunal found that the Assessing Officer did not allege any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Consequently, the reopening was deemed invalid and quashed.

2. Treatment of Income from Sale of Shares:
The second issue was the treatment of income from the sale of shares amounting to ?5,11,026/-. The Assessing Officer treated this as income from other sources instead of capital gains, citing the transactions as sham based on the investigation of M/s Mukesh M. Choksi group. Since the reassessment was quashed, the Tribunal did not delve further into this issue.

3. Disallowance of Exemption under Section 54EC:
The third issue involved the disallowance of exemption under Section 54EC on an investment of ?5,20,000/- in REC Bonds. The Assessing Officer denied this exemption, treating the transaction as bogus. However, since the reopening was invalidated, this disallowance was not further addressed by the Tribunal.

4. Disallowance of Exemption under Section 54F:
The fourth issue was the disallowance of exemption under Section 54F amounting to ?1,22,790/-. Similar to the other issues, this disallowance was based on the reassessment, which was ultimately quashed by the Tribunal, rendering further discussion unnecessary.

Conclusion:
The Tribunal quashed the reopening of the assessment as invalid due to the failure of the Assessing Officer to allege any non-disclosure of material facts by the assessee. Consequently, the other issues raised in the appeal were not addressed. The appeal was allowed in favor of the assessee.

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