2019 (3) TMI 679 - AT - Income Tax

Validity of the reopening of the assessment - no addition based on alleged reasons to belief that assessee in receipt of accommodation entry of loss from Mahanagar Group - Power of AO to make other addition u/s 147 proceedings - HELD THAT - AO has not made any addition/disallowance on the issue. So, without making any addition/disallowance on this accommodation entry for loss the AO ought not to have proceeded to re-assess the assessee on other incomes like the addition of STCG and disallowance u/s 14A. The jurisdictional fact which empowered the AO to invoke the jurisdiction to reopen by issue of notice u/s. 148 r.w.s. 147 as deciphered from the reasons recorded is the accommodation entry of loss. So, when AO desired to reopen this assessment year, he had information of assessee in receipt of accommodation entry of loss from Mahanagar Group, which fact was recorded to re-open the assessment. This precise fact was the foundation based on the information from Director of income Tax and the AO recorded the reason which warranted him to hold the belief that income chargeable to tax has escaped assessment and thereafter, the AO usurped the jurisdiction to reopen the assessment. Words is the income which according to the AO escaped assessment while recording reasons for reopening assessment u/s 147 r.w.s. 148. This income which AO records in his reasons recorded has escaped assessment and which constituted the bedrock/basis for reopening is the jurisdictional fact which empowered him to usurp the jurisdiction to reopen and reassess the escaped income as contemplate u/s 147/148. So, when that income which was the foundation on which he based his belief of escapement of income is absent /disappeared then the AO s very usurpation of jurisdiction is on non-existing jurisdictional fact which renders his usurpation of jurisdiction to reopen the assessment legally untenable and so null in the eyes of law and therefore, the assessee succeeds and therefore, we quash the reassessment made by the AO without jurisdiction. - decided in favour of assessee.

Summary

Issues Involved:
1. Legal validity of the reopening of the assessment under sections 147 and 148 of the Income Tax Act.
2. The jurisdiction of the Assessing Officer (AO) to assess or reassess income not mentioned in the notice under section 148.

Detailed Analysis:

1. Legal Validity of the Reopening of the Assessment:
The primary grievance of the assessee concerns the legal validity of the reopening of the assessment for the Assessment Year 2010-11. The assessee contends that the AO did not assess or reassess the income which he had reason to believe had escaped assessment and which formed the basis of the notice under section 148. The AO received information from the Director of Income Tax (I & CI) indicating that the assessee was a beneficiary of accommodation entries from M/s. Mahasagar Group. Based on this information, the AO recorded reasons for reopening the assessment, suspecting an under-assessment of ?2,71,500/- due to alleged bogus transactions. However, in the reassessment order, the AO did not make any addition or disallowance related to this specific issue, instead making other additions unrelated to the initial reason for reopening.

2. Jurisdiction of the AO to Assess or Reassess Other Income:
The Tribunal examined whether the AO could assess or reassess any other income independently if the income which formed the basis of the notice under section 148 was not assessed or reassessed. The Tribunal referred to the judgment of the Hon’ble Bombay High Court in CIT vs Jet Airways (I) Ltd. (2010) 195 Taxman 117 (Bombay), which held that the AO must assess or reassess the income that led to the belief of escapement, and only then could he assess any other income that comes to his notice during the proceedings. The Tribunal emphasized that the words "and also" in section 147 are conjunctive and cumulative, meaning the AO must assess the income which he had reason to believe had escaped assessment and only then could he assess other income.

The Tribunal noted that the AO’s failure to assess the ?2,71,500/- alleged to have escaped assessment, which was the foundation for reopening the assessment, rendered the reassessment invalid. The Tribunal concluded that without making any addition or disallowance on the specific issue that led to the reopening, the AO could not proceed to reassess other incomes. Therefore, the AO’s jurisdiction to reopen the assessment was based on a non-existing jurisdictional fact, making the reassessment legally untenable.

Conclusion:
The Tribunal quashed the reassessment made by the AO, holding that the reopening of the assessment was invalid as the AO did not assess the specific income that formed the basis of the notice under section 148. The appeal of the assessee was allowed, and the reassessment was declared null in the eyes of the law.