2022 (9) TMI 1032 - AT - Income Tax

Reopening of assessment u/s 147 - Eligibility of reasons to believe - as submitted both the transactions with the parties are bogus and liable to be added u/s. 69/69A as unexplained investments - HELD THAT - As per Explanation 3 if during the course of these proceedings the Assessing Officer comes to conclusion that some items have escaped assessment, then notwithstanding that those items were not included in the reasons to believe as recorded for initiation of the proceedings and the notice, he would be competent to make assessment of those items. However, the Legislature could not be presumed to have intended to give blanket powers to the AO that on assuming jurisdiction under section 147 regarding assessment or reassessment of escaped income. AO would keep on making roving inquiry and thereby would include different items of income not connected or related with the reasons to believe, on the basis of which he assumed jurisdiction. For every new issue coming before the AO during the course of proceedings of assessment or reassessment of escaped income, and which he intends to take into account. In the instant case, the AO was satisfied with the justifications given by the assessee regarding the items, viz., credit transactions with two parties. During the assessment proceedings, he found the justification of addition U/s 44AD of the Act. He, consequently, while not making additions on transactions, which was supposed to added back with the U/s 69/69A of the Act. The escapement of income was ascertained amount to Rs.79,31,509/-. But the addition was made amount to Rs. 38,10,700/-. The ld. AO was not so justified when the reasons for the initiation of those proceedings ceased to survive. Decided in favour of assessee.

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO) related to the addition of net profit under Section 44AD.
2. Validity of the reopening of assessment under Section 147/148.
3. Discrepancies between VAT returns and income tax returns.
4. Justification of additions made under Section 44AD instead of Sections 69/69A.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO) related to the addition of net profit under Section 44AD:
The assessee's counsel argued that the AO incorrectly applied Section 44AD, which pertains to presumptive taxation for small businesses, by calculating an 8% net profit on a turnover of Rs. 4,76,33,724/-. The counsel contended that this turnover does not fall under the purview of Section 44AD, and the AO's calculation of net profit at 8% was without any basis. Historical data showed the Gross Profit (G.P.) and Net Profit (N.P.) rates were significantly lower, never exceeding 2%. The tribunal found merit in this argument, noting that the AO's approach lacked justification and was inconsistent with the established profit margins of the assessee.

2. Validity of the reopening of assessment under Section 147/148:
The AO initiated reopening under Section 147 on the grounds of unverified credit/transfer entries amounting to Rs. 34,57,563/- and Rs. 79,31,509/- to two firms, which were not reflected in the assessee's VAT returns. The AO believed these transactions indicated escaped income. However, the tribunal observed that the AO's final addition was based on a different issue (net profit under Section 44AD) rather than the reasons initially recorded for reopening (unexplained investments under Sections 69/69A). This discrepancy rendered the reopening invalid as it lacked a direct nexus with the recorded reasons, aligning with the Delhi High Court's judgment in Ranbaxy Laboratories Ltd. v. CIT.

3. Discrepancies between VAT returns and income tax returns:
During the assessment, the AO found significant discrepancies between the VAT returns and the income tax returns. The VAT returns showed purchases of Rs. 23,93,487/- and zero sales, while the income tax returns declared purchases of Rs. 5,80,81,918/- and sales of Rs. 4,76,33,724/-. The AO concluded that the transactions were bogus. However, the tribunal noted that the AO did not add these discrepancies under Sections 69/69A but instead applied Section 44AD, which was not justified. The tribunal emphasized that the AO's addition should have directly addressed the discrepancies noted in the recorded reasons for reopening.

4. Justification of additions made under Section 44AD instead of Sections 69/69A:
The tribunal found that the AO's addition under Section 44AD was inconsistent with the recorded reasons for reopening, which pertained to unexplained investments under Sections 69/69A. The AO did not substantiate why the addition was shifted to Section 44AD, and there was no live nexus between the initial reasons for reopening and the final addition. The tribunal cited the Delhi High Court's ruling in Ranbaxy Laboratories Ltd., which held that the AO must adhere to the reasons recorded for reopening and cannot arbitrarily shift the basis of addition.

Conclusion:
The tribunal concluded that the AO's assessment order was invalid due to the lack of a direct nexus between the recorded reasons for reopening and the final addition made. The addition of Rs. 38,10,700/- under Section 44AD was deleted, and the appeal of the assessee was allowed. The assessment order was quashed as it was deemed bad in law.

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