2019 (10) TMI 739 - HC - Income Tax

Reopening of assessment u/s 147 - eligibility of reasons to believe - HELD THAT - The descriptive information provided in the reasons, is not so specific with partywise details and therefore, it is rightly contended by the petitioner that they were not in a position to file an effective objection against reopening of the assessment, as they were not in a position to reconcile their records. It is also stated that the petitioner Company is not in a position to download the details of Form 26AS in the absence of access to e-filing/TRACES portal, which document alone would reflect the partywise details. Therefore, it is necessary for the respondent to furnish those details to the assessee so as to enable them to file their objections in effective manner. It is relevant to mention at this juncture that in GKN Driveshafts (India) Ltd. 2002 (11) TMI 7 - SUPREME COURT has laid down the principles as to how the reopening of the assessment should be proceeded with, commencing from the issuance of notice u/s 148 onwards. It is made clear therein that the reasons for reopening must be provided to the assessee, who in turn is entitled to make his objections on such reasonings and that the AO has to pass a reasoned order on such objections. AO has proceeded to pass an order of assessment directly without following the procedures laid down in GKN Driveshafts (India) Ltd. case. It is true that the Assessing Officer has proceeded to issue 143(2) notice after waiting for sometime from the date of issuance of 148 notice. But at the same time, it is to be seen that before passing the impugned order of assessment, the above two communications of the petitioner were placed at the hands of the Assessing Officer. Therefore, in all fairness, the Assessing Officer should have given the material details, so as to enable the petitioner to file their objections and passed a speaking order on those objections thereafter. No such procedures are followed in this case impugned order of assessment dated 29.11.2018 cannot be sustained. Therefore, this Court is inclined to remit the matter back to the Assessing Officer for furnishing the details sought for by the petitioner through their communication dated 29.08.2018 and 17.09.2018 and thereafter to proceed in accordance with the procedure laid down in GKN Driveshafts (India) Ltd. case.

Summary

Issues Involved:
1. Legality of the notice issued under Section 148 of the Income Tax Act, 1961.
2. Validity of the assessment order passed under Section 143(3) read with Section 147 of the Income Tax Act, 1961.
3. Alleged failure to follow the procedure laid down by the Supreme Court in GKN Driveshafts (India) Ltd. case.
4. Alleged violation of the principles of natural justice.
5. Adequacy of the reasons provided for reopening the assessment.
6. Limitation period for reopening the assessment.

Issue-wise Detailed Analysis:

1. Legality of the Notice Issued Under Section 148:
The petitioner challenged the notice issued under Section 148 dated 31.03.2018 for the assessment year 2011-12, alleging that the income had escaped assessment. The petitioner argued that the notice was issued based on suspicion without any tangible material on record, and the respondent failed to provide detailed reasons for reopening the assessment despite specific requests.

2. Validity of the Assessment Order Passed Under Section 143(3) read with Section 147:
The petitioner contended that the assessment order dated 29.11.2018 was passed without waiting for the petitioner to file objections to the reasons for reopening, thus violating principles of equity and natural justice. The respondent argued that the petitioner had not filed objections within the stipulated time, thereby justifying the issuance of notice under Section 143(2) and the subsequent assessment order.

3. Alleged Failure to Follow the Procedure Laid Down by the Supreme Court in GKN Driveshafts (India) Ltd. Case:
The petitioner argued that the respondent failed to follow the procedure laid down in GKN Driveshafts (India) Ltd. case, which mandates that reasons for reopening must be provided to the assessee, who is then entitled to make objections. The Assessing Officer must pass a reasoned order on such objections before proceeding further. The court found that the Assessing Officer did not follow these procedures, as the petitioner was not given adequate details to file effective objections.

4. Alleged Violation of the Principles of Natural Justice:
The petitioner claimed that the assessment proceedings were vitiated due to a violation of the principles of natural justice, as the respondent did not provide detailed reasons for reopening the assessment, thus preventing the petitioner from filing effective objections. The court agreed, noting that the reasons provided were not specific with party-wise details, which hindered the petitioner's ability to reconcile their records and file objections.

5. Adequacy of the Reasons Provided for Reopening the Assessment:
The court observed that the reasons provided for reopening the assessment were insufficient, as they lacked party-wise details of transactions. The petitioner argued that without these details, they could not reconcile the reasons with their books of accounts. The court found merit in this argument, noting that the petitioner was unable to download details of Form 26AS due to lack of access to the e-filing/TRACES portal of the amalgamated company.

6. Limitation Period for Reopening the Assessment:
The petitioner contended that the reopening of the assessment was barred by limitation, as the transactions referred to in the reasons for reopening were already available on record with the Assessing Officer. The court did not make a definitive ruling on this issue but left it open for future adjudication if warranted.

Conclusion:
The court set aside the impugned assessment order dated 29.11.2018 and remitted the matter back to the Assessing Officer with specific directions to furnish the material details sought by the petitioner, allow the petitioner to file objections, and pass a reasoned order on the objections. Consequently, the writ petition challenging the notice under Section 148 was closed, leaving all issues open for future adjudication.

Directions to the Assessing Officer:
a) Furnish the material details sought by the petitioner within four weeks.
b) Allow the petitioner to file objections within two weeks thereafter.
c) Pass a speaking order on the objections within four weeks of receiving them.
d) Proceed further based on the order passed on the objections, if necessary.

Outcome:
W.P.No.1927 of 2019 was allowed, and the impugned assessment order was set aside. W.P.No.1923 of 2019 was closed. No costs were awarded, and connected miscellaneous petitions were also closed.