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2022 (11) TMI 64 - AT - Income TaxReopening of assessment u/s 147 - Notice after expiry of four years from the end of the assessment year - HELD THAT - In the reassessment proceedings, the AO referred the matter relating to international transactions to the Transfer Pricing Officer. After passing of draft assessment order, the assessee filed its objections to Ld Dispute Resolution Panel. After receiving directions from Ld DRP, the AO determined the total income under the normal provisions of the Act at Rs.4.72 crores and book profit at Rs.3.16 crores. Since the total income computed under normal provisions of the Act was more than the book profit, the AO raised tax demand on the total income computed under normal provisions of the Act. The assessee, inter alia, has challenged the validity of reopening of assessment before the Tribunal. We heard the parties first on this legal issue. As noticed earlier, the original assessment in the hands of the assessee was completed u/s 143(3) of the Act on 06-12-2015. AO has reopened the assessment by issuing notice u/s 148 of the Act on 31.3.2019, i.e., the reopening has been done after expiry of four years from the end of the assessment year. At this juncture, we may refer to the provisions of sec.147 of the Act, particularly the proviso thereto, which gives a protection to the assessee in the cases of reopening of assessment after expiry of four years from the end of the assessment year As reasons recorded by the assessee would show that the assessing officer has noticed alleged escapement of income only on verification of records . Hence there is merit in the contentions of Ld A.R that the AO did not bring any new material on record for forming belief that there is escapement of income. We noticed earlier that the reopening has been done after expiry of four years from the end of the assessment year and hence it is imperative for the AO to show that there was failure on the part of the assessee to disclose fully and truly all material facts, as stated in the proviso to sec.147 of the Act. The case of the assessee is that there was no failure on its part as alleged by the AO. We are of the view that the reopening of assessment is bad in law and hence the order passed by the assessing officer is liable to be quashed. Accordingly, we quash the order passed by the AO. Appeal filed by the assessee is allowed.
Issues Involved:
1. Validity of reopening of assessment under Section 147 of the Income Tax Act after four years. 2. Alleged failure to disclose fully and truly all material facts necessary for assessment. 3. Examination of transactions related to unsecured loans, corporate guarantees, and interest-free loans to associated enterprises. Issue-wise Detailed Analysis: 1. Validity of Reopening of Assessment under Section 147: The primary issue was whether the reopening of the assessment after four years from the end of the relevant assessment year was valid under Section 147 of the Income Tax Act. The original assessment was completed under Section 143(3) on 06-02-2015, and the assessment was reopened by issuing a notice under Section 148 on 31.3.2019. The proviso to Section 147 stipulates that no action shall be taken after four years unless the income has escaped assessment due to the failure of the assessee to disclose fully and truly all material facts necessary for the assessment. 2. Alleged Failure to Disclose Fully and Truly All Material Facts: The Assessing Officer (AO) reopened the assessment on the grounds that the assessee failed to disclose material facts related to unsecured loans, corporate guarantees, and interest-free loans. The AO contended that these facts were embedded in the records and required due diligence to be discovered, invoking Explanation 1 to Section 147, which states that production of account books or other evidence does not necessarily amount to disclosure. 3. Examination of Transactions: - Unsecured Loans: The AO noted that the assessee received unsecured loans of Rs. 4.35 crores from a related party, which should be treated as deemed income under Section 2(22)(e) due to the existence of accumulated profits in the lender company. However, the assessee argued that these transactions were fully disclosed during the original assessment proceedings through specific queries raised by the AO and responses provided by the assessee. - Corporate Guarantees: The AO observed that the assessee provided a corporate guarantee to its foreign subsidiary without charging any fee, which should have been accounted for at arm's length price. The assessee countered that this transaction was disclosed in the notes to accounts and Form 3CEB, which were part of the original assessment records. - Interest-Free Loans: The AO highlighted that the assessee gave interest-free loans to its foreign subsidiary, which should have been charged interest at an arm's length rate. The assessee maintained that these transactions were explicitly disclosed in the original assessment through specific queries and responses. Tribunal's Findings: The Tribunal found that the AO's reasons for reopening the assessment were based on the verification of records already available during the original assessment. The Tribunal noted that the AO had raised specific queries regarding the transactions during the original assessment, and the assessee had provided the necessary details. The Tribunal emphasized that the duty of the assessee is to disclose fully and truly all primary relevant facts, and it does not extend beyond this. The AO's failure to draw inferences from the disclosed facts cannot be a ground for reopening the assessment after four years. The Tribunal referred to the decisions of the Hon'ble Bombay High Court in Kalpataru Limited vs. DCIT and State Bank of India vs. ACIT, which held that reopening of assessment after four years requires tangible material indicating failure to disclose material facts, and mere verification of records does not suffice. Conclusion: The Tribunal concluded that the reopening of the assessment was invalid as there was no failure on the part of the assessee to disclose fully and truly all material facts. The order passed by the AO was quashed, and the appeal filed by the assessee was allowed. Order: The appeal filed by the assessee is allowed. The order was pronounced in the open court on 20.09.2022.
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