2022 (8) TMI 575 - AT - Income Tax

Reopening of assessment u/s 147 - reasons to believe on the basis of which his case was reopened - sustainability of the assessment framed by the A.O without making available a copy of the reasons to believe to the assessee who after duly complying with the notice u/s 148 of the Act is stated to have specifically requested for the same - HELD THAT - As in the case before us there has been a complete violation of the applicable principle of law by the A.O, who had despite specific request by the assessee failed to communicate the reasons to believe that had formed the very basis for reopening of his assessment u/s.147 of the Act, therefore, the very assumption of jurisdiction by him and framing of the impugned assessment cannot be sustained and is liable to be struck down on the said count itself. Our aforesaid view is supported by the judgment of the Hon ble High Court of Bombay in the case of Agarwal Metals and Alloys 2012 (8) TMI 612 - BOMBAY HIGH COURT As view had been taken by the Hon ble High Court of Delhi in the case of Pr. CIT Vs.Jagat Talkies Distributors 2017 (9) TMI 192 - DELHI HIGH COURT . In its aforesaid order, the Hon ble High Court relying on the judgment of the Hon ble High Court of Bombay in the case of CIT Vs. Trend Electronics, 2015 (9) TMI 1119 - BOMBAY HIGH COURT had held, that on account of the failure of the A.O to make available to the assessee a copy of the reasons for reopening of the assessment u/s.147 of the Act, the re-assessment proceedings would stand vitiated in law. Accordingly, as in the case before us, the A.O despite specific request of the assessee had failed to provide to him the copy of the reasons to believe on the basis of which his case was reopened u/s.147 therefore, as per the aforesaid settled position of law the assessment framed by the him being devoid and bereft of valid assumption of jurisdiction cannot be sustained and is herein quashed. - Decided in favour of assessee.

Issues Involved:
1. Validity of initiation of proceedings under Section 147 of the Income-tax Act, 1961.
2. Failure to communicate "reasons to believe" for reopening the case.
3. Legitimacy of assessment without year-wise scrutiny and proper notice.
4. Contradictory findings by CIT(Appeals) on the validity of reopening and reference to DVO.
5. Reliance on the estimated report of the registered valuer by the survey team.
6. Addition based on pure estimations without rejecting the books of account.
7. Sustaining estimated addition without corroborative evidence.

Detailed Analysis:

1. Validity of Initiation of Proceedings under Section 147:
The assessee challenged the initiation of proceedings under Section 147, arguing that the Assessing Officer (AO) failed to communicate the reasons for reopening the case. The assessee contended that there was no material available on record to form a "reason to believe" that income had escaped assessment. The AO's action was deemed unsustainable both on facts and in law.

2. Failure to Communicate "Reasons to Believe":
The AO did not provide the assessee with a copy of the "reasons to believe" despite a specific request. This failure deprived the assessee of the statutory right to object to the reopening of the case. The tribunal noted that the AO's failure to communicate these reasons violated the principles established by the Supreme Court in GKN Driveshafts (India) Ltd. v. ITO, which mandates that the reasons must be communicated to the assessee, allowing them to file objections.

3. Legitimacy of Assessment without Year-wise Scrutiny and Proper Notice:
The assessee argued that the investments were fully disclosed in the balance sheet filed with the return, and the case was not taken up for scrutiny within the stipulated time limit. The AO's recourse to Section 147 was inappropriate as it could not substitute for Sections 143(2) and 143(3).

4. Contradictory Findings by CIT(Appeals):
The CIT(Appeals) did not quash the assessment order despite acknowledging that the reopening was vitiated by the AO and that the reference to the DVO was contrary to law. This contradiction was highlighted as a significant error by the assessee.

5. Reliance on the Estimated Report of the Registered Valuer:
The CIT(Appeals) relied on the estimated report of the registered valuer, which the assessee argued was contrary to law. The survey team had no provision in the Act to obtain such a report, and the reference to the DVO was held by the CIT(Appeals) as contrary to law.

6. Addition Based on Pure Estimations without Rejecting the Books of Account:
The CIT(Appeals) sustained an addition of Rs. 487,209 based on estimations without first detecting any suppression in investment recorded in the books of account. This action was contested as being contrary to facts and law.

7. Sustaining Estimated Addition without Corroborative Evidence:
The CIT(Appeals) erred in sustaining the estimated addition without bringing any corroborative evidence on record to substantiate such estimation. The justification for ignoring the investment recorded in the books of account was also not provided.

Conclusion:
The tribunal quashed the assessment due to the AO's failure to provide the "reasons to believe," which was a fundamental requirement for valid jurisdiction under Section 147. This failure invalidated the reopening of the assessment. Consequently, the tribunal did not address the merits of the addition made in the assessment. The same reasoning applied to the appeals for the assessment years 2010-11 and 2012-13, leading to all appeals being allowed.

Order Pronouncement:
The order was pronounced in open court on 04th August 2022, allowing all the assessee's appeals.

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