2022 (12) TMI 1317 - AT - Income Tax

Reopening of assessment u/s 147 - 2nd reassessment has been initiated even when the 1st assessment was due to be completed - t wo assessment orders have been passed by two different AO s - unexplained investment u/s 69A on account of purchase of shares - HELD THAT - In this case it is noted that two assessment orders have been passed by two different AO s vide order dated 25-07-2019 and 8-12-2019 respectively. In the first assessment order dated 25-07-2019, the contentions of the assessee were accepted by the AO after due verification of the material on record. In the second assessment order dated 8-12-2019 u/s 144/147 of the Act, the AO made additions of Rs.3,41,360/- and Rs.3,59,000/- and added the same in the return of the assessee for the reason that the assessee did not submit the reply to the show cause notice issued by the new incumbent. In first appeal, the ld. CIT(A) deleted the additions against the order of the AO dated 8-12-2019 by observing that it is clear that the 2nd assessment order cannot stand the test of appeal and hence is annulled. The appeal of the assessee is allowed . Taking into consideration the above facts and circumstances of the case, we concur with the findings of the ld. CIT(A). Thus the appeal of the Revenue is dismissed.

Issues:
1. Validity of the order passed by the first AO under section 147/144 of the Income Tax Act, 1961.
2. Addition of Rs. 3,41,360 on account of unexplained investment in shares of VMS Industries Ltd.
3. Addition of Rs. 4,59,000 on account of unexplained investment in cash deposited in the bank account of the assessee.

Issue 1: Validity of the order passed by the first AO:
The case was reopened by the first AO under section 148 of the Income Tax Act, 1961, based on the assessee's transaction in shares of VMS Industries, considered a penny stock company. The first AO accepted the returned income after verifying the transaction details and passed an assessment order on 25-07-2019. However, a new AO issued a show cause notice to the assessee and subsequently passed an order on 08-12-2019, adding Rs. 3,41,360 and Rs. 4,59,000 to the returned income. The ld. CIT(A) annulled the second order, stating that no new information warranted the reassessment, and the second AO had not applied his mind to the materials at hand. The ld. CIT(A) emphasized that action against the assessee should have been taken under section 263, not section 148, as the issues had already been debated and scrutinized in the first assessment order.

Issue 2: Addition of Rs. 3,41,360 on account of unexplained investment:
The successor AO added Rs. 3,41,360 to the assessee's income, alleging unexplained investment in shares of VMS Industries. The ld. CIT(A) quashed this addition, highlighting that the transaction involved the purchase and sale of shares on the same day, resulting in a loss. The ld. CIT(A) noted that there was no basis for the addition made by the successor AO, as the transaction did not justify the alleged investment amount. The ld. CIT(A) emphasized that the successor AO's order lacked merit and was rightly annulled.

Issue 3: Addition of Rs. 4,59,000 on account of unexplained cash deposit:
The successor AO also added Rs. 4,59,000 to the assessee's income, attributing it to unexplained cash deposits in the bank account. However, the ld. CIT(A) overturned this addition, citing the lack of new information or grounds to justify reopening the assessment. The ld. CIT(A) held that the second assessment order was invalid and could not stand the test of appeal. The appeal of the assessee was allowed, and the claims made by the department were disallowed.

In conclusion, the Appellate Tribunal upheld the findings of the ld. CIT(A) and dismissed the appeal filed by the Revenue, emphasizing that the second assessment order was not justified and lacked legal basis. The judgment highlighted the importance of following proper procedures and applying legal provisions correctly in assessment proceedings.

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