2021 (6) TMI 234 - AT - Income Tax

Reopening of assessment u/s 147 - addition being profit earned by the assessee on commodity trading - as argued when no addition is made on the issue on which the assessment was reopened, is it open for the Assessing Officer to make additions or disallowance on other issues which were not the reason recorded for reopening the assessment? - HELD THAT - AO has not made an addition being profit earned by the assessee on commodity trading which was the reasons for the Assessing Officer to believe that income subject to tax has escaped assessment, based on which, reasons were recorded and reopening of assessment was done u/s 147. As relying on case of M/s. Infinity Infotech Parks Ltd. 2014 (9) TMI 1142 - CALCUTTA HIGH COURT AO cannot make additions on issues which had not formed the basis of reopening of assessment, when no additions has been made in the assessment order passed u/s 147 r.w.s. 143(3) of the Act on the issue, based on which the reasons were recorded and assessment reopened. Thus, we hold that the assessment order passed u/s 147 r.w.s. 143(3) of the Act on 29/08/2018, is bad in law. On merits, we find that the Assessing Officer has issued notice u/s 133(6) of the Act to NMCE and that NMCE has confirmed all the transactions. The assessee has filed voluminous evidence and confirmations. These evidences, were not controverted by the Assessing Officer. - Decided in favour of assessee.

Summary

Issues Involved:
1. Legality of the assessment order due to the absence of additions based on the reasons for reopening.
2. Merits of the disallowance of loss claimed by the assessee from commodity trading.

Issue-Wise Detailed Analysis:

1. Legality of the Assessment Order:
The primary issue is whether the assessment order is valid when no addition is made on the issue for which the assessment was reopened. The assessee argued that the assessment order is "bad in law" because the Assessing Officer (AO) did not make any addition on the basis of the issue for which the assessment was reopened. The reopening was based on the belief that the assessee had not declared an income of ?9,62,385 from commodity profits. However, the AO did not make any addition concerning this amount in the reassessment order.

The Tribunal referred to several judgments, including those of the Hon'ble Bombay High Court in "Commissioner of Income Tax vs. Jet Airways" and the Hon'ble Delhi High Court in "Ranbaxy Laboratories Ltd. v. CIT", which established that if no addition is made on the issue that formed the basis for reopening, then no other additions can be made. The Tribunal also cited the Hon'ble Jurisdictional High Court in "CIT Vs. M/s. Infinity Infotech Parks Ltd.", which held that the AO must make an addition on the issue for which the assessment was reopened to validate the jurisdiction for reassessment.

The Tribunal concluded that since the AO did not make any addition on the ?9,62,385 commodity profit, the reassessment order is invalid. The Tribunal emphasized that the AO's jurisdiction to reassess is contingent upon making an addition on the issue that prompted the reopening. Since this condition was not met, the reassessment was deemed "bad in law."

2. Merits of the Disallowance of Loss:
On the merits, the assessee contended that all transactions were conducted on the NMCE platform and were confirmed by NMCE in response to a notice issued under Section 133(6) of the Act. The assessee provided extensive evidence, including contract notes and ledger accounts, to support the legitimacy of the transactions. The AO, however, disallowed the claimed loss of ?52,17,270 on the grounds that the transactions were synchronized and resulted in artificial losses.

The Tribunal noted that the AO did not conduct any independent inquiry or verify the evidence provided by the assessee. Instead, the AO relied on general observations made by the Investigation Wing of the Department. The Tribunal found that the evidence provided by the assessee was not controverted by the AO.

However, since the Tribunal had already determined that the reassessment order was invalid on legal grounds, it did not delve into the merits of the case, stating that it would be an academic exercise.

Conclusion:
The appeal was allowed in favor of the assessee, with the Tribunal holding that the reassessment order was invalid because the AO did not make any addition on the issue that formed the basis for reopening the assessment. Consequently, the Tribunal did not adjudicate on the merits of the disallowance of the loss claimed by the assessee.

Order:
The appeal of the assessee is allowed.