2019 (11) TMI 321 - AT - Income Tax

Reopening of assessment u/s 147 - CIT(A) upholding the action of AO in reopening u/s 147/148 - Additions on account of so called bayanas as forged or bogus - HELD THAT - DR has tried to made out a case that the triggering factor was the payments in cash amounting to ₹ 75 lakh odd for purchase of property. He has attempted to argue that a perusal of the return would not have addressed the issue. Thus, maintaining that the material fact was payments made in cash for purchase of property and not filing of the return. Accordingly, noting the objections of the Sr.DR and in the inability of the ld. AR who was also not in a position to address the relevant facts namely whether the assessee has been a regular Income Tax assessee over the years and be said to expect that the stated amounts noticed in the transaction could readily be said to be available to him. Thus, in the absence of relevant discussion on facts, we deem it appropriate to set aside the said ground back to the file of the CIT(A) with the direction to pass a speaking order in accordance with law after obtaining necessary remand reports, if any on the past history of the assessee, if need be and of course providing the assessee a reasonable opportunity of being heard. On a perusal of the impugned order of CIT-A we find ourselves constrained to hold that the order cannot be upheld. The order cannot be said to be a speaking order in the eyes of law as the affidavit relied upon on behalf of the assessee has neither been discussed nor any reasons have been given why it has to be discarded. In the absence of any discussion on the facts and submissions advanced by the assessee before the CIT(A), we are not in a position to conclude whether the finding arrived at by the CIT(A) is correct on facts or not. Accordingly, we set aside the impugned order and restore the issue back to the file of the CIT(A) with the direction to pass a speaking order in accordance with law. - Appeal of the assessee is allowed for statistical purposes.

Issues Involved:
1. Validity of the reopening of assessment under sections 147/148.
2. Legitimacy of the additions made by the Assessing Officer (AO).
3. The non-speaking nature of the order passed by the Commissioner of Income Tax (Appeals) [CIT(A)].
4. Reliance on inadmissible evidence.
5. Source of investments made by the assessee.

Detailed Analysis:

1. Validity of the reopening of assessment under sections 147/148:
The assessee challenged the reopening of the assessment under sections 147/148 on the grounds that it was based on presumptions, incorrect facts, and without jurisdiction. The AR argued that the reopening was directed purely because the assessee had not filed a return of income for the relevant year, which was incorrect as the return was indeed filed on 17.10.2012. The Revenue contended that the reopening was necessary due to the assessee's significant cash payments for property, suggesting income escapement. The Tribunal noted that the reopening was based on the incorrect premise that no return was filed, similar to the case of ITO v. Manpreet Singh Bhamra, where the reopening was quashed. Consequently, the Tribunal remanded the issue back to the CIT(A) for a detailed examination of the facts and a speaking order.

2. Legitimacy of the additions made by the Assessing Officer (AO):
The assessee contended that the additions made by the AO were upheld without a speaking order and without considering the written submissions, affidavits, and other evidence. The Tribunal observed that the CIT(A) had not adequately addressed the discrepancies pointed out by the AO or discussed the affidavits and evidence provided by the assessee. Therefore, the Tribunal set aside the order and remanded the issue back to the CIT(A) for a detailed and reasoned decision on the merits of the case.

3. The non-speaking nature of the order passed by the CIT(A):
The Tribunal found that the order passed by the CIT(A) was non-speaking, as it did not provide reasons for discarding the affidavits and evidence submitted by the assessee. The Tribunal emphasized the need for a detailed discussion and reasoned order, and thus, remanded the issue back to the CIT(A) for a comprehensive evaluation and a speaking order.

4. Reliance on inadmissible evidence:
The assessee argued that the CIT(A) relied on inadmissible evidence, such as unsigned photocopies of alleged 'bayanas' (agreements). The Tribunal noted that the CIT(A) had not provided a detailed discussion on the admissibility and relevance of these documents. Therefore, the Tribunal directed the CIT(A) to reassess the evidence and provide a reasoned decision.

5. Source of investments made by the assessee:
The assessee claimed that the investments in land were made from the sale proceeds of 18 Kanal land at Village Aahar. The Tribunal observed that this claim was not adequately addressed by the CIT(A). Therefore, the Tribunal remanded the issue back to the CIT(A) for a thorough examination of the source of investments and a reasoned decision.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, remanding the issues back to the CIT(A) with directions to pass a speaking order addressing the jurisdictional challenge and, if necessary, the merits of the case. The CIT(A) was instructed to consider all evidence and submissions provided by the assessee and to provide a detailed and reasoned decision in accordance with the law.

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