2021 (5) TMI 757 - AT - Income Tax

Validity of reopening of assessment u/s 147 - Reasons for initiation of proceedings under section 147 - HELD THAT - AO was not specific as to on what basis the Assessing Officer has the reason to believe that the income of the assessee to the tune of 1 crore has escaped assessment. In fact, in one para the Assessing Officer is observing the assessee as accommodation entry provider and in next, the assessee is treated as the receiver of the share application money. But the basis for which is not elaborated and there is contradiction in the reasons given by the Assessing Officer. Besides this the Assessing Officer has not disposed off the objections filed by the assessee prior to concluding of the assessment proceedings, but has given a general finding in the Assessment order itself which is not in consonance with the provisions of the Income Tax statute relating to disposal of the objections by the Revenue authorities. In the present case, the Assessing Officer has not taken proper cognizance of the direction of the Hon'ble Supreme Court in case of GKN driveshaft India Ltd versus ITO 2002 (11) TMI 7 - SUPREME COURT . Thus, the assessment becomes a nullity and does not survive as the Assessing Officer has not passed a speaking order of disposal of the objections filed by the assessee. The assessment also becomes void-ab-intio as the reasons recorded are also not in consonance with the actual escapement of the income of the assessee. Thus, the assessment order itself is null and void-ab-intio as the reassessment proceedings becomes invalid. Decided in favour of assessee.

Issues Involved:
1. Validity of the assessment order under Section 143(3) read with Section 147 of the Income Tax Act, 1961.
2. Correlation of additions made with incriminating material found during the search operation under Section 132.
3. Applicability of provisions under Section 147/148 when a search has been conducted under Section 132.
4. Application of mind and independent inquiry by the Assessing Officer while recording reasons under Section 147/148.
5. Following prescribed procedures and addressing objections filed by the assessee.
6. Legality of additions made to the returned income of the assessee.
7. Basis for additions made and whether they were communicated to the assessee.
8. Principles of natural justice and their violation.
9. Benefit of telescoping to avoid double taxation.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee argued that the assessment order passed under Section 143(3) read with Section 147 was bad in law and void-ab-initio. The Tribunal found that the reasons recorded by the Assessing Officer were not specific and lacked a clear basis for the belief that income had escaped assessment. The Tribunal noted contradictions in the reasons provided and concluded that the assessment order was null and void-ab-initio.

2. Correlation with Incriminating Material:
The assessee contended that the additions made were null and void as they did not correlate with any incriminating material found during the search operation under Section 132. The Tribunal did not delve into this issue separately, as the assessment was already deemed void due to procedural lapses.

3. Applicability of Provisions under Section 147/148:
The assessee argued that provisions of Section 147/148 could not be applied when a search was conducted under Section 132, as these are excluded under Sections 153A/153B/153C. The Tribunal did not address this issue separately due to the overarching finding of procedural invalidity.

4. Application of Mind and Independent Inquiry:
The assessee claimed that the Assessing Officer did not apply his mind independently and relied on borrowed satisfaction. The Tribunal agreed, finding that the reasons recorded were based on vague and borrowed information, thus invalidating the assessment.

5. Prescribed Procedures and Addressing Objections:
The assessee argued that the prescribed procedures were not followed, particularly that objections were not quashed by a separate, independent speaking order. The Tribunal found that the objections were not disposed of by a speaking order before concluding the assessment, which violated the principles laid down by the Supreme Court in GKN Driveshafts (India) Ltd. v. ITO. This procedural lapse rendered the assessment null and void.

6. Legality of Additions:
The assessee contended that the additions made to the returned income were arbitrary and lacked legal basis. The Tribunal did not need to address this issue separately as the assessment was already deemed void due to procedural lapses.

7. Basis for Additions:
The assessee argued that the basis for the additions was never communicated properly. The Tribunal noted that the reasons provided were vague and contradictory, supporting the assessee's claim.

8. Principles of Natural Justice:
The assessee claimed that the principles of natural justice were violated as the basis for the additions was not communicated through a proper show cause notice. The Tribunal found that the procedural lapses, including the failure to dispose of objections by a speaking order, constituted a violation of natural justice.

9. Benefit of Telescoping:
The assessee argued for the benefit of telescoping to avoid double taxation. The Tribunal did not address this issue separately due to the overarching finding of procedural invalidity.

Conclusion:
The Tribunal concluded that the assessment order was null and void-ab-initio due to procedural lapses, including the failure to dispose of objections by a speaking order and the vague and contradictory reasons recorded for the belief that income had escaped assessment. As a result, the assessment was deemed invalid, and the appeals were allowed.

← Previous Next →