2021 (5) TMI 751 - AT - Income Tax

Validity of reopening of assessment - non proper satisfaction of the authority specified under section 151 - HELD THAT - In the instant case since reopening proceedings were initiated prior to amendment by the Finance Act, 2015, satisfaction of Joint Commissioner was required for issuing notice under section 148 of the Act. The Assessing Officer has issued notice after the satisfaction was recorded by the Additional CIT. The Additional CIT has been included in the definition of Joint Commissioner, therefore, see no infirmity in the notice issued under section 148 of the Act. The case laws on which the ld. AR of the assessee has placed reliance does not apply to the facts of the case. Consequently, the ground No.11 raised as additional grounds of appeal is dismissed. Reopening have been recorded by an Assessing Officer having no jurisdiction - Undisputedly, the reasons recorded for reopening, notice u/s 148 and the assessment order can only be passed by the assessing officer having valid jurisdiction over the assessee. Reasons recorded for reopening or notice u/s 148 of the Act or the assessment order passed by any assessing officer without jurisdiction is bad in law. I find that this legal objection has been raised by the assessee is without any cogent evidence. The assessee has failed to discharge its onus to substantiate that the Assessing Officer who has issued notice under section 148 of the Act or the one who has passed assessment order were not having jurisdiction over the assessee at relevant point of time. The assessee has made mere bald assertions without there being any substantive material on record. The case laws relied on by the ld. AR of the assessee are on different set of facts and hence, distinguishable. Ergo, additional ground of the appeal is rejected. No statutory notice under section 143(2) has been served on the assessee before making assessment - As in assessment order has categorically mentioned that in response to the notice under section 148 of the Act issued and served on 19/03/2014, the assessee filed letter dated 24/07/2014 stating that the return filed on 31/10/2013 may be treated as return in response to the notice under section 148 of the Act. The said dates have not been disputed by the ld. AR of the assessee. Thus, it is evident from record that the assessee failed to comply with the notice u/s 148 of the Act within the time period specified. Once, the assessee fails to comply with the conditions given in the notice, the assessee losses its right to object to service of notice under section 143(2) of the Act. Before seeking relief on legal grounds, it is incumbent upon the assessee to first comply with the conditions within the time frame prescribed under the notice. Validity of reasons to believe - In the instant case, as is evident from the assessment order no assessment was made under section 143(3) as the return filed by the assessee was time barred, hence, invalid. Proceedings u/s 148 r.w.s. 147 of the Act were initiated on the bases of tangible material received by the Assessing Officer. The Assessing Officer has recorded his satisfaction for reopening the assessment explicitly mentioning the name of the firm to whom the assessee has given its premises for use. I find no merit in the submissions of ld. Authorised Representative of the Assessee on this legal ground. The case law on which reliance has been placed to support this argument does not apply to the facts of this case and hence, distinguishable. Income from house property - Rental value of the property - HELD THAT - As in the case of Park Paper Industries Pvt. Ltd. 2008 (8) TMI 599 - ITAT MUMBAI the Tribunal held that where the property has not been let out, Municipal value would be proper yardstick for determining annual value. We restore this issue back to the file of Assessing Officer with a direction to determine the exact area of the shops and thereafter, compute annual rental value in line with the decision of Tribunal rendered in the case of Park Paper P. Ltd. (supra). It is further made clear that any municipal taxes actually paid by the assessee qua the shops under question for the impugned assessment years are to be allowed as deduction.

Summary

Issues Involved:
1. Validity of reopening under section 148 read with section 147 of the Income Tax Act, 1961.
2. Issuance of notice under section 143(2) of the Act.
3. Jurisdiction of the Assessing Officer issuing the notice and passing the assessment order.
4. Validity of reasons for reopening the assessment.
5. Determination of income from house property.
6. Levy of interest under sections 234A, 234B, and 234C of the Act.

Detailed Analysis:

1. Validity of Reopening under Section 148 r.w.s. 147:
The appellant challenged the reopening of the assessment under section 148 on the grounds that the notice was issued without proper sanction as required under section 151 of the Act. The Tribunal noted that the reassessment proceedings were initiated prior to the amendment by the Finance Act, 2015. At that time, satisfaction of the Joint Commissioner was required, and in this case, the Additional CIT had provided the necessary satisfaction. Since the Additional CIT is included in the definition of Joint Commissioner under section 2(28C), the Tribunal found no infirmity in the notice issued under section 148. Consequently, the appellant's objection was dismissed.

2. Issuance of Notice under Section 143(2):
The appellant argued that the assessment was invalid as no notice under section 143(2) was issued. The Tribunal emphasized that issuance of notice under section 143(2) is mandatory before passing an assessment order. However, the appellant failed to respond to the notice under section 148 within the specified period. The Tribunal held that the appellant lost the right to object to the service of notice under section 143(2) due to non-compliance with the notice under section 148. Thus, this ground was also dismissed.

3. Jurisdiction of the Assessing Officer:
The appellant raised an objection that the notice under section 148 was issued by ITO, Ward 9(1)(2), while the assessment order was passed by ITO, Ward 12(1)(3). The Tribunal noted that there was a substantial restructuring in the Department, and both officers had valid jurisdiction over the appellant at the relevant times. The appellant failed to provide substantive evidence to prove otherwise. Hence, this objection was rejected.

4. Validity of Reasons for Reopening:
The appellant contended that the reasons for reopening were not valid as they did not quantify the amount of escapement and were based on a tax evasion petition without the Assessing Officer applying his mind. The Tribunal found that the reasons recorded were based on tangible material and explicitly mentioned the firm involved. The Tribunal dismissed this ground, finding no merit in the appellant's submissions.

5. Determination of Income from House Property:
The appellant challenged the addition made under the head "income from house property," arguing that the annual value should be based on Municipal Valuation rather than market rent. The Tribunal noted discrepancies in the area of shops as mentioned in the assessment order and the Municipal Corporation report. The Tribunal directed the Assessing Officer to determine the exact area of the shops and compute the annual rental value based on Municipal Valuation, following the decision in the case of Park Paper Industries Pvt. Ltd. The issue was restored to the Assessing Officer for re-examination.

6. Levy of Interest under Sections 234A, 234B, and 234C:
The appellant contested the levy of interest under sections 234A, 234B, and 234C. The Tribunal held that charging of interest under these sections is mandatory and consequential. Therefore, this ground was dismissed.

Conclusion:
The appeals for the assessment years 2007-08 and 2008-09 were partly allowed for statistical purposes, with the issue of determining the income from house property being restored to the Assessing Officer for re-examination. The Tribunal dismissed all other legal objections raised by the appellant.